RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00905
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20060214

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, medically separated for “chronic bilateral knee pain” with a disability rating of 10%.   

CI CONTENTION:  “Review all conditions.”  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 - 20051221	VARD - 20060324	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	10%	Retropatellar Pain Syndrome, Right Knee	5257	0%	20060113	
			Retropatellar Pain Syndrome, Left Knee	5257	0%	20060113	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded 5003 (arthritis, degenerative) and rated 10%.  This approach by the PEB not uncommonly reflected its judgment that the combination of conditions was unfitting and that 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 VASRD 5003 rating guidance, and that this approach does not necessarily 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.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI sustained proximal left tibia and fibula fractures in a motor vehicle accident in June 2002 that required open reduction and internal fixation.  He later suffered a re-injury from a fall but was able to deploy to Iraq in 2004.  Upon redeployment he complained of bilateral knee pain, with repeated documentation that the left knee was worse, and was diagnosed with retropatellar pain syndrome without surgical indications.  There was ample STR documentation of grossly normal range of motion (ROM), the absence of persistent effusion, and the absence of impingement or locking.  There were no contrary STR entries for any of these findings, none that suggested any more significant ROM limitation or gait disturbance, and none that documented any additional VASRD-ratable findings.  There was no evidence in the available STR of formal goniometric ROM measurements.  The 19 August 2005 MEB physical examination (DD Form 2808), 6 months prior to separation, documented the absence of effusion and grossly normal ROM, recording “pain elicited with flexion and extension – bilateral knees.”  

The 26 September 2005 MEB NARSUM examination, 5 months prior to separation, documented bilateral knee pain “left greater than right” that was rated 6/10, prohibiting running and aggravated by “prolonged activity such as walking, running, jumping, and marching.”  The physical examination (all findings bilateral) recorded tenderness, patellar crepitus, the absence of effusion (no noted impingement), and “full” ROM without addressing painful motion.  The MEB diagnosis and the profile designation was “bilateral knee pain,” and the commander’s performance statement was not probative to separate fitness implications of either knee.

The 13 January 2006 VA Compensation and Pension (C&P) examination, 1 month prior to separation, documented non-specific bilateral knee pain (no clarification right versus left) that interfered with “navigating stairs, walking and running long distances, or standing stationary for extended lengths of time.”  The physical examination (all findings bilateral) recorded a normal gait, tenderness, the absence of effusion (no noted impingement), and “full [ROM] bilaterally with pain noted during 110-130 degrees of flexion bilaterally.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s bilateral 10% rating referenced application of the U. S. Army Physical Disability Agency pain policy, which circumvents VASRD §4.59 (painful motion).  The VA’s separate 0% ratings, based on the C&P evidence, were under code 5257 (knee, other impairment of) and justified non-compensable ratings based on the absence of ROM limitation or instability without addressing painful motion.  The panel first considered if the bilateral joint condition met the above threshold for separate ratings.  The evidence made clear that the pathology, clinical acuity, and impairment associated with the left knee was significantly more severe than that for the right.  The disparity was such that the question was raised of whether the right knee was reasonably justified as separately unfitting.  

It remained, however, that the profile, commander’s statement, and other STR evidence did not provide any information that would permit the panel to discriminate specific performance limitations attributable to either knee over the other.  Since undue speculation would be required to conclude that the limitations imposed by the right knee would not have prohibited continued service as an infantryman, members agreed that each knee was reasonably justified as separately unfitting and subject to a separate disability rating.  

Having so agreed, members turned to deliberation of the appropriate rating recommendations for each knee.  Given the specific documentation of painful motion for each joint per the MEB and C&P evidence, members agreed that minimum 10% ratings were supported by §4.59.  There was no evidence for compensable ROM limitation (codes 5260 or 5261), persistent effusion and locking (code 5258), or nonunion or malunion (code 5262) to support a rating higher than 10% for either knee.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends separate 10% ratings for each knee under code 5099-5024 (analogous to tenosynovitis).

BOARD FINDINGS:  In the matter of the PEB-combined bilateral knee condition, the panel recommends that each joint be separately rated as follows:  an unfitting left knee condition rated 10% and an unfitting right knee condition rated 10%, each coded 5099-5024 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Retropatellar Pain Syndrome, Left Knee	5099-5024	10%	
Retropatellar Pain Syndrome, Right Knee	5099-5024	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170220, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

AR20180004954, 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