RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00034
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20061214

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for “chronic bilateral knee pain” with a disability rating of 0%.

CI CONTENTION:  No specific contention was made but an attached VA rating decision included ratings for all of the conditions forwarded by the Medical Evaluation Board (MEB).  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting or non-compensable.  Any conditions outside the panel’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition(s) at the time of separation.  The panel has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20061024	VARD - 20071023	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	Right Knee Synovitis	5020	10%	20070320	
			Left Knee Synovitis	5020	10%	20070320	
Chronic Bilateral Ankle Pain	Not Unfitting	Right Ankle Synovitis	5020	10%	20070320	
		Left Ankle Synovitis	5020	10%	20070320	
Chronic Bilateral Foot Pain	Not Unfitting	Pes Planus	5276	NSC	20070320	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  The PEB combined the right and left knee conditions under a single disability rating, coded 5099-5003 and rated 0%.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that adjudicated by the PEB.  The evidence for the right and left knee conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Bilateral Knee Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s bilateral knee pain began in December 2003 after running for physical training.  Bilateral knee X-rays were normal, but serial right knee MRIs indicated an effusion.  The CI underwent right knee surgery in January 2006 for grade II chondromalacia.  The left knee was not a major focus of clinical concern until after the right knee surgery.

At the 20 July 2006 orthopedic consult, 5 months prior to separation, the examiner recorded bilateral, recurrent effusions that appeared to be activity related.  The CI was unable to ruck-march, run, or do any high impact activities because of persistent effusions.  On physical examination (PE), the CI had full range of motion (ROM) in both knees (0-140 degrees).  Crepitus and effusion were present bilaterally, but provocative maneuvers to elicit signs of instability or meniscal pathology were negative.    

At the 2 August 2006 MEB NARSUM examination, the CI reported bilateral knee pain rated at 2/10.  This increased to 7/10 with recurrence of swelling, particularly in the right knee, if he walked more than half a mile.  On PE, he walked with a mild limp favoring the right leg.  Right knee ROM was flexion to 105 degrees (normal 140) and extension to 0 degrees (normal).  Left knee ROM was flexion to 110 degrees and extension to 0 degrees.  The 27 September 2006 medical evaluation clinic appointment noted knees demonstrated normal movement with pain elicited by motion.
 
At the 20 March 2007 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported bilateral knee swelling, heat, redness, fatigability and lack of endurance and an occasional sensation of knee instability.  He denied weakness, stiffness, and locking.  The PE revealed a normal gait, knees showing “normal range of motion with pain,” no instability, and negative provocative maneuvers to elicit meniscal pathology.  

The panel first considered if the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Members concluded that the pre-separation evidence of bilateral knee effusions and painful motion coupled with post-separation evidence of continued bilateral painful motion would not overcome the presumption that the bundled knee condition was reasonably considered separately unfitting.  

The panel next directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 0%, coded 5099-5003 (analogous to degenerative arthritis), citing  normal bone scan, X-rays and right knee arthroscopy without significant loss of joint motion.  The VA rated the right and left knee conditions 10% each, coded 5020 (synovitis), citing painful or limited motion of a major joint.  Members agreed there was no limitation of flexion or extension in either knee that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  There was no history or evidence in either knee of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) or history of surgery to remove a meniscus (5259) to support a rating under those codes.  There was no fracture, nonunion or malunion of the femur or tibia in either knee to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  However, there was evidence of painful motion with functional loss in each knee supporting a 10% rating (based on §4.59, §4.40 and §4.45) for each knee.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends disability ratings of 10% each, for the right and left knee conditions, both coded 5099-5003.  

Contended PEB Conditions:  Chronic Bilateral Ankle Pain and Chronic Bilateral Foot Pain.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the right knee condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left knee condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Knee Pain	5099-5003	10%	
Chronic Left Knee Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161208, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180003275, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure