RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00773
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040907

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “chronic bilateral knee pain” with a disability rating of 20%.  

CI CONTENTION:  The VA assigned a higher rating than the Army.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040625	VARD - 20041117	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain 	5099-5003	20%	S/P Left Knee Arthroscopic Surgery 	5257	20%	20041104	
			S/P Right Knee Meniscal Repair	5257	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 5099-5003 (degenerative arthritis) and rated 20% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  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 CI 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 is presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent right knee surgery on 1 May 2003 for synovial end flap debridement.  He then underwent left knee surgery on 12 January 2004 with debridement of a medial meniscus beak tear, removal of a medial femoral chondral flap, and partial chondroplasty.  

During the 15 June 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported frequent bilateral knee swelling, locking, giving out and constant pain; he also wore knee braces.  The MEB NARSUM examination, the same day, noted that despite surgeries, the knees still hurt, would "lock" and "buckle" and would swell on and off. Sometimes he fell down after walking a short distance due to knee buckling.  Physical examination showed tenderness in the medial aspect of both knees.  There was no muscle atrophy and no motor or sensory deficit in the lower extremities.  Range of motion (ROM) testing for both the left and right knees showed flexion of 135 degrees (normal 140) and extension of 0 degrees (normal), with pain at the end of flexion of each knee.  The examiner noted, “He cannot walk long distances without his knee buckling and he would fall down.”  

At the 4 November 2004 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported constant pain in both knees, but denied any period of incapacitation.  Physical examination showed an antalgic gait favoring the left side secondary to left knee pain, and limited and painful left knee motion with weakness and instability.  There was no evidence of heat, redness, swelling, effusion, drainage or abnormal movement. Drawer sign (laxity) was slightly positive, and McMurray testing (meniscal) was negative.  Measured left knee ROM showed flexion of 105 degrees and extension of 0 degrees limited by pain, lack of endurance, fatigue, weakness and mild instability.  The right knee showed no evidence of heat, redness, swelling, effusion, drainage, abnormal movement, instability or weakness.  Drawer and McMurray tests were both negative, and flexion was to 110 degrees and extension of 0 degrees, limited by pain, but not fatigue, weakness, lack of endurance or incoordination.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB rated the bundled bilateral knee condition 20%, analogously coded 5099-5003, citing moderate and constant pain IAW the USAPDA pain policy.  The VA rated the left knee condition 20%, coded 5257 (knee, other impairment of), based on the C&P examination, citing moderate, recurrent subluxation or lateral instability.  The VA also rated the right knee condition 10%, coded 5257, citing slight, recurrent subluxation or lateral instability.  

In this case, both knees were profiled and implicated by the commander’s statement, and failed retention standards.  Panel members agreed that the evidence reasonably justified that the functional limitations of each knee condition contributed to the CI’s inability to perform his military duties; each was reasonably unfitting, and accordingly separate disability ratings are recommended for each knee.  

The panel agreed there was no compensable limitation of flexion or extension (5260 or 5261); or fracture, nonunion or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262) for either knee.  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for each knee.  There was no higher rating supported for the right knee.  The panel deliberated whether the left knee warranted a 20% rating analogous to code 5258 (dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint).  The STR indicated meniscal and chondral surgery with documented post-surgical evidence of symptoms to include frequent episodes of “locking,” pain, and swelling of the joint; however, panel consensus was that given scant objective findings of effusions, no clear diagnostic imaging of retained body in the joint, and negative McMurray’s testing, any meniscal coding would be no greater than 10% analogous to code 5259 (cartilage, semilunar, removal of, symptomatic).  Since meniscal coding includes painful motion, the panel did not consider potential dual-rating (for instability) given both the scope of PDBR adjudication and most importantly, the overlap of symptoms considered under meniscal rating criteria.  Therefore, any alternative coding of 10% for each knee separately would offer no benefit compared to the 20% awarded by the PEB for the left knee.  After due deliberation, and considering all the evidence, the panel majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bundled knee condition.  

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent recommended re-characterization but did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

AR20190009808, 

Dear XXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.