RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01159
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070118

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4 , Cargo Specialist, 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 - 20061214	VARD - 20070619	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5023	10%	Right Knee Strain, Status Post Arthroscopic Procedure	5257	10%	20070322	
			Left Knee Strain	5257	10%	20070322	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded 5023 and rated 10%.  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 5023 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 of the PEB. 

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent an arthroscopic evaluation of the right knee in 2005.  Intraoperative findings revealed a pristine patellofemoral joint with no evidence of chondromalacia, chondral defect, loose bodies, meniscal tear, anterior cruciate ligament disruption, or evidence of plica.  Postoperatively, he did well; however, his knee pain continued.  He followed up again in orthopedics in September 2006 with the complaint of bilateral knee pain, particularly on the medial side bilaterally.  At the 7 July 2005 physical therapy evaluation, right knee range of motion (ROM) showed flexion to 125 degrees (normal 140) and extension to 0 degrees (normal).  Left knee ROM showed flexion of 130 degrees and extension of 0 degrees.  The examiner stated that with patellar taping, pain with flexion and extension was gone.  

At the 31 October 2006 MEB physical therapy ROM study, 3 months prior to separation, the physical examination revealed tenderness.  Right knee ROM showed flexion of 114 degrees and extension of 0 degrees.  Left knee ROM showed flexion of 123 degrees and extension of 0 degrees.  The CI exhibited guarding/resisting with passive ROM of the right knee.  ROM studies were performed with a goniometer.  

The 26 November 2006 MEB NARSUM examination, 2 months prior to separation, noted a long history of recurrent bilateral knee pain.  Physical examination revealed a normal gait.  Both knees demonstrated tenderness over the medial femoral condyle, but there was no effusion or instability in either knee.  The examiner’s assessment was bilateral knee pain along with X-ray evidence of myositis ossificans on the medial side of each knee.  

At the 30 March 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported problems with kneeling, squatting, or stooping.  Physical examination revealed a normal gait and stance.  He was able to tandem toe and heel walk without difficulty.  There was a mild effusion of the right knee.  Moderate crepitus was palpable on motion of both knees.  Stability of both knees was good.  Lower extremity strength was normal.  Right knee ROM showed flexion of 125 degrees and extension of 0 degrees.  Left knee ROM showed flexion of 135 degrees and extension of 0 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 10%, coded 5023 (myositis ossificans), citing “bilateral tenderness without effusions or ligamentous laxity.  Ranges of motion while slightly decreased on the right are within normal [limits] for rating purposes.  Radiographs show bilateral myositis ossificans greater on the right.  Rated at 10% as there are two joints involved.”  The VA rated the right knee condition 10%, coded 5257 (other impairment of knee, or recurrent subluxation or lateral instability), based on the C&P examination, citing “status post arthroscopic procedure, mild effusion of the knee, moderate crepitus palpable, with limited flexion to 125 degrees and extension to 0 degrees.  The mild functional limitations described by the VA examiner, and your report of recurrent pain and limitation of use.”  The VA also rated the left knee condition 10%, coded 5257, based on the C&P examination, citing “moderate crepitus palpable, with limited flexion to 135 degrees and extension to 0 degrees, the mild functional limitations described by the VA examiner, and your report of recurrent pain and limitation of use.”  

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.  In this case, a bilateral condition was considered to fail retention standards and was profiled.  The evidence reasonably justified that the functional limitations of each knee separately contributed to the CI’s inability to perform his military duties.  Therefore, panel members agreed that each knee was separately unfitting.  

The panel noted the PEB utilized VASRD diagnostic code 5023, which allows for rating each affected joint for limitation of motion IAW VASRD rating criteria of code 5003.  This code states:  “Degenerative arthritis [myositis ossificans] established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10% is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion.  In the absence of limitation of motion, rate as…with evidence of involvement of 2 or more major joints….10%.”  This approach carries the formidable burden of excluding separate joint ratings for compensable limitation of motion or painful motion (§4.59) and also requires consideration of VASRD 4.7 (higher of two ratings).  

Bilaterally, there was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, the panel majority believes there was evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40, and 4.45) for the right and left knee, citing STR entries and the MEB and VA examinations.  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259), for either knee to support a rating under those codes.  There was no 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 the right or left knee.  There was therefore no VASRD §4.71a rating higher than 10% for either knee under any applicable code.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt) and VASRD 4.7 (higher of two evaluations), the panel majority recommends a disability rating of 10% for the right knee condition, coded 5023, and a disability rating of 10% for the left knee condition, coded 5023.  

BOARD FINDINGS:  In the matter of the right knee condition, the panel majority recommends a disability rating of 10%, coded 5023 IAW VASRD §4.71a.  In the matter of the left knee condition, the panel majority recommends a disability rating of 10%, coded 5023 IAW VASRD §4.71a.  The single voter for dissent recommends no change, but did not elect to submit a minority opinion.  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	
Right Knee Strain	5023	10%	
Left Knee Strain	5023	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170222, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008601, 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