RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-01533
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E7, Military Police, medically separated for “bilateral knee pain” with a disability rating of 0%.  

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 - 20061026	VARD - 20070517	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain…	5099-5003	0%	Left Patellofemoral Syndrome	5014-5257	10%	20070322	
			Right Patellofemoral Syndrome	5014-5261	10%	20070322	
Low Back Pain	Not Unfitting	Lumbar Strain	5237	20%	20070322	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20070328	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  80% 	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded 5099-5003 (analogous to degenerative arthritis) and rated 0%.  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 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.  The evidence for each knee condition 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 complained of persistent bilateral knee pain after a fall in September 2005.  There was also a history of meniscal surgery on the right knee in 1983.  Plain X-rays demonstrated mild degenerative changes bilaterally.  Magnetic resonance imaging raised the possibility of a meniscal injury on the left (intact cruciate ligaments documented bilaterally), but orthopedics opined that no surgery was indicated.  The symptoms did not respond adequately to conservative treatment to permit full resumption of duties.

There was documentation in several STR clinical entries of grossly normal range of motion (ROM) in both knees, but there was ample documentation of painful motion for both knees.  There were two orthopedic entries that documented bilateral flexion in the range of 100 to 130 degrees (normal 140, 45 for minimum 10%) and bilateral extension of minus 15 degrees (normal 0) in the first note and minus 5 degrees in the second.  There was ample STR documentation of a normal gait, the absence of persistent effusion, the absence of mechanical impingement (objective locking), and stability to stress testing in all planes (no objective instability).  There were no STR entries that suggested any more significant ROM limitation or that documented any additional VASRD-ratable findings.

The 5 September 2006 MEB NARSUM examination, 2 months prior to separation, documented constant pain rated 7/10 on the left and 6/10 on the right with subjective “give way … on rare occasions.”  The pain was exacerbated by running, negotiating steps, prolonged standing, and impact activities.  The physical examination (all findings bilateral) recorded a normal gait, the absence of effusion, no mention of instability or impingement, and “full” ROM specifying painful motion.  Formal ROM measurements for the MEB performed by physical therapy (PT) 28 September 2006 recorded flexion to 120 degrees left and 110 degrees right, and extension minus 1 degree left and 0 degrees right, specifying painful motion.  The MEB diagnosis and profile designated a bilateral condition.  The commander’s performance statement was not probative to separate fitness implications of either knee.

The 22 March 2007 VA Compensation and Pension (C&P) examination, 4 months after separation, documented non-specific bilateral knee pain and subjective instability without further elaboration.  The physical examination (all findings bilateral) recorded a normal gait, the absence of effusion, stability to stress testing in all planes, negative signs of impingement (locking), and no observed “functional limitation of standing or walking.”  Measured ROM was bilateral flexion to 120 degrees and bilateral extension of minus 15 degrees, specifying bilateral painful motion and no degradation with repetition.  

The PEB rated the bilateral knee condition 0%, coded analogously as 5003 (degenerative arthritis) citing “no significant loss of knee [ROM] or evidence of instability.”  The panel noted that a bilateral rating of 0% does not comport with VASRD §4.71a which confers a 10% rating under criteria of 5003 for the involvement of “2 or more major joints” without specifying a need for additional criteria.  The VA rated the bilateral knee condition 10% each for the right and left, coded 5014-5257 (osteomalacia - knee, other impairment), citing painful motion for each rating.  

The panel first considered if the bilateral joint condition met the above threshold for separate ratings.  The profile, commander’s statement, NARSUM, remaining STR evidence, and probative VA evidence did not provide any information that enabled the panel to discriminate the performance limitations attributable to either knee over the other.  Since undue speculation would be required to conclude that the functional impairment from either joint would not have unacceptably interfered with the performance of military duties, members agreed that each knee was reasonably justified as separately unfitting.

Having so agreed, members turned to deliberation of the appropriate coding and rating recommendation for each joint.  Painful motion of each knee was amply documented in STR entries and by both the NARSUM and VA examiners.  Members thus agreed there was satisfactory evidence of painful motion to support a minimum 10% rating for each knee IAW VASRD §4.59.  The panel considered the evidence for bilateral extension of minus 15 degrees (STR entry and C&P as above), noting that this satisfies the 20% criterion of code 5261 (limitation of extension).  Members agreed, however, that this evidence was not sufficiently probative to support a higher rating on the basis of ROM limitation.  It conflicted with the preponderance of ROM evidence and was not correlated with the clinical facts (no ligamental injury or laxity that would cause pathologic hyperextension).  There was no evidence for persistent effusion and locking (code 5258) or nonunion or malunion (code 5262) to support a rating higher than 10% for either knee; and, there was no objective evidence for instability to justify additional rating on that basis.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends separate 10% ratings for each knee using code 5099-5003.

Contended PEB Conditions:  Low Back Pain and Obstructive Sleep Apnea (OSA).  The STR does not provide a concise history of the onset or chronicity of the CI’s back pain (the MEB DA Form 3947 listed the onset as “unknown”).  The NARSUM stated it was worsened by deployment (Iraq October 2005 - April 2006), implying that it was chronic.   There were no radicular symptoms or positive neurologic findings, and X-rays were normal.  The NARSUM examiner documented that “since he has been demobilized, this pain has become much less of a problem, although it is still occasionally exacerbated....”  There were no significant positive physical findings, and PT documented formal ROM measurements of normal flexion (90 degrees) and only modest reductions in other planes (combined ROM 205 degrees, normal 240). 

The first STR entry for OSA was a 31 August 2006 pulmonary clinic evaluation, 16 weeks before separation, with complaints of snoring and restless sleep.  The onset timing of these symptoms was not in evidence.  The CI underwent a sleep study and was diagnosed with “mild [OSA].”  He was prescribed a nocturnal assisted breathing device.  An addendum to the NARSUM documented therapy was still being titrated but anticipated a “satisfactory response.”  A 28 March 2007 general VA C&P examination, 4 months after separation, documented that with use of the nocturnal device “all of the symptoms have resolved except night sweats.”

Low back pain and OSA were forwarded by the MEB as failing retention standards, and each was listed on the profile as in effect at separation (no earlier profiles were in evidence).  The commander’s performance statement referred only to the CI’s “medical condition” as the source of his performance limitations.  The PEB’s DA Form 199 decision acknowledged the MEB determinations, but opined that the conditions were nevertheless not unfitting “based on your rank, PMOS, and the generally expected capabilities and resources available in a mature theater.”  

The panel’s main charge is to assess the fairness of the PEB’s determination that each of the above conditions was not unfitting.  Although the conditions were profiled and judged to fail retention standards at the time of the MEB, the evidence indicated that each of them was following a favorable clinical course.  It was also not clear how chronic either condition was and whether either was subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral) which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  Members considered whether there was sufficient performance-based evidence to support a conclusion that either the low back pain or OSA would have prohibited further military service.  Given the clinical course and degree of functional impairment noted above, all members agreed the preponderance of evidence would not justify that conclusion for the low back condition; and, member consensus was it would not justify that conclusion for OSA.

After due deliberation, the panel consensus was that there was insufficient cause to recommend a change in the PEB fitness determinations for the lumbar and OSA conditions, so no additional disability ratings are recommended.   

BOARD FINDINGS:  In the matter of the PEB’s combined bilateral knee condition, the panel recommends that each joint be rated as separately unfitting at 10%, each coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended lumbar and obstructive sleep apnea conditions, the panel majority recommends no change from the PEB determinations as not unfitting.  The single voter for dissent recommends re-characterization and 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	
Degenerative Arthritis, Right Knee	5099-5003	10%	
Degenerative Arthritis, Left Knee	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

AR20180009589, 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure