RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01135
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060618

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E1, Combat Engineer, 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 - 20060303	VARD - 20070321	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	10%	Right Knee Chondromalacia Patella	5260	10%	20070112	
			Left Knee Chondromalacia Patella	5260	10%	20070112	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions as a single unfitting condition coded analogously to 5003 (arthritis, degenerative) and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The 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 also 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 the PEB’s approach of 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 of the PEB.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s bilateral knee condition began in April 2003 after a “second jump” while assigned to airborne school.  A right knee X-ray in May 2003 was normal, and iliotibial band syndrome was diagnosed and treated with non-steroidal anti-inflammatory medication and a profile without relief.  The CI resumed training and completed three jumps, but reported his knees were “still pretty screwed up.”  Numerous sick call visits and profiles followed until February 2004, when the CI had difficulty walking.  Bilateral knee X-rays were normal and a left knee MRI in June 2004 showed an insignificant meniscal tear.  

During the 14 November 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI was able to heel, toe, and duck walk with knee pain.  There was bilateral patellar tenderness, positive apprehension, painful motion with knee movements, but no crepitus.    The 2 February 2006 MEB NARSUM examination, 4 months before separation, noted that the CI wore knee braces and complained of constant bilateral knee pain with the inability to run, ruck, march, jump or breach an obstacle.  Physical examination was unchanged from the November 2005 examination.

At the 12 January 2007 VA Compensation and Pension (C&P) examination, 7 months after separation, the CI reported crushing, aching, squeezing, cramping, burning and sharp bilateral knee pain.  Walking was limited and he had joint effusion at times (worse on the right) and locking pain.  Physical examination showed an abnormal gait, bilateral knee tenderness, abnormal movement, guarding, and kneecap crepitus.  Right knee flexion was 140 degrees (normal) and reduced by 40 degrees due to pain after repetition.  Left knee flexion was 95 degrees reduced by 30 degrees due to pain after repetition.  Bilateral knee extension was 0 degrees (normal).

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.  The bilateral knees were permanently L3 profiled, implicated in the commander’s statement, and failed MEB retention standards.  Members agreed that the evidence reasonably justified that the individual right and left knee functional limitations contributed to the CI’s inability to perform his military duties.  Accordingly, the panel recommends separate disability ratings for the right and left knee conditions.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 10%, analogously coded 5099-5003, citing the USAPDA pain policy.  The VA rated the right and left knee conditions 10% each, coded 5260 (leg, limitation of flexion), based on the C&P examination, citing painful motion.  Members agreed that there was no limitation of flexion or extension which that supported a rating under diagnostic codes 5260 or 5261.  However, there was sufficient STR and VA evidence of painful motion with functional loss to support a 10% rating (based on §4.59, §4.40 and §4.45) for each knee.  Although the CI had positive left knee meniscus tear imaging, it was noted as insignificant, and there was no frequent locking with recurrent effusions (5258) noted proximate to separation to support a higher rating.  Additionally, there was no fracture, nonunion or malunion of the femur or tibia causing a knee impairment (5255, 5262) to support a higher rating for either knee under those codes.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right knee condition, and a disability rating of 10% for the left knee condition, both coded 5099-5003. 

BOARD FINDINGS:  In the matter of the bilateral knee condition, the panel recommends a 10% rating for the right knee condition, and a 10% rating for the left knee condition, both 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 the date of medical separation:

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

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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.