RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01318
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated  for “bilateral knee pain,” with a disability rating of 0%.

CI CONTENTION:  “I broke my back in 03 or 02 in Iraq.”  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 - 20060804	VARD - 20070605	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	0%	Residuals, Lateral Meniscus Tear, Left Knee, Status Post Arthroscopy	5260	10%	20061003	
			Residual, Right Knee Injury	5260	10%	20061003	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the bilateral knee pain conditions as a single unfitting condition coded analogously to 5003 (arthritis) and rated 0%.  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’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 a physical disability.  The evidence for the bilateral knee pain condition is presented with attendant recommendations regarding separate unfitness, and separate ratings if indicated.  

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s right knee pain began without direct injury or known trauma in 1998.  In mid-1998 the CI underwent an arthroscopy and was diagnosed with a torn medial meniscus which was repaired.  The CI had no further problems with the right knee and joined the National Guard in 2000.  In early 2001 he entered active duty, and in August 2001 began experiencing left knee pain during physical training and was medically treated with medications and temporary profiles.  X-rays were reported as normal.  

Failing physical therapy (PT) goals, the CI was then referred to orthopedics whereby further testing revealed a torn left meniscus.  The CI’s left knee was surgically repaired in late 2001.  In early 2002 the CI was returned to full duty and deployed with no knee problems.  In April 2004 he returned to National Guard status and began experiencing left knee pain and swelling.  In September 2004 the CI underwent a second arthroscopy of the left knee followed by PT.  In April 2005 he returned to active duty status with no further symptoms.  In June 2005, he began having bilateral knee pain while performing physical activities and again was treated with medications and restrictions until being deployed in July 2005.  The CI did relatively well during the deployment; however, upon his return in January 2006 he began experiencing bilateral knee pain while running.  In February 2006 bilateral knee X-rays were normal, but an MRI of both knees revealed a tear of the medial meniscus extending onto the bony surface of the joint.  In April 2006 orthopedics diagnosed the CI with bilateral retro-patellar pain syndrome and issued a P3 profile.  Additional surgery was not recommended.

At the 20 June 2006 MEB NARSUM examination, 5 months prior to separation, the CI reported a constant, but varied intense bilateral knee pain with occasional radiation to the back side of the knees.  Symptoms were increased with prolonged standing, walking, climbing, and repeated knee bending, and relief was achieved with getting weight off the knees, ice, massages, and soft knee supports.  Physical examination (PE) revealed full range of motion (ROM) of both knees without evidence of meniscal pathology, joint instability, joint tenderness, or effusion.  Left patellar grind was positive and right patellar grind was negative.  The remainder of examination was within normal limits.

At the 3 October 2006 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported a constant aching and sharp bilateral knee pain which worsened with physical activity and was relieved by rest.  No incapacitating episodes were reported.  His PE revealed no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement to either knee.  Crepitus was noted to both knees.  Bilateral knee ROM was normal with a 10 degree deficit in both directions upon repetitive use with pain being the major functional impact.  Joint instability or abnormal meniscal pathology were not found.  

The panel directed attention to its rating recommendation based on the above evidence.  As previously elaborated, the panel must first consider whether each knee remains separately unfitting, having been de-coupled from a combined PEB adjudication.  The PEB rated the bilateral knee condition 0%, coded 5099-5003 (analogous to arthritis, degenerative), citing no loss of joint motion or evidence of instability.  The VA rated the right knee condition 10%, coded 5024 (tenosynovitis), and the left knee condition 10%, coded 5260 (leg, limitation of flexion), based on the C&P examination, citing right knee painful or limited motion of a major joint and left knee pain status post left lateral meniscus tear with limitation of motion with pain, weakness, and fatigue on repetition.  

The panel carefully considered the option of rating both knees together versus each leg separately.  Members concluded that the evidence did provide sufficient grounds for recommending separate knee disability ratings.  There was no limitation of motion which supported a rating under the diagnostic code for limitation of flexion (5260), but the 10 degree bilateral deficit in knee extension upon repetition as seen at the VA examination, 1 month prior to separation, did support a 10% rating under code 5261 (limitation of extension).  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), nor was there fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was therefore no VASRD §4.71a route to a rating higher than the 10% for each knee under any applicable code, and no grounds for additional rating based on the presence of instability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right knee condition and 10% for the left knee condition.

BOARD FINDINGS:  In the matter of the bilateral knee condition, the panel recommends a disability rating of 10% for each knee, coded 5261 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Left Knee Pain	5261	10%	
Right Knee Pain	5261	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170302, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180004941, 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