RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01596
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated for “bilateral patellofemoral chondromalacia” rated 10%, and “subtalar left ankle osteoarthritis” rated 0%, with a combined disability rating of 10%.  

CI CONTENTION:  The VA rated higher for his knee and ankle conditions.  He also requested review of conditions not identified in the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20060427	VARD - 20060811	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Patellofemoral Chondromalacia	5099-5003	10%	Right Knee Chondromalacia 	5299-5014	10%	20060718	
			Left Knee Chondromalacia	5299-5014	10%	20060718	
Left Ankle Subtalar Osteoarthritis	5003	0%	Left Ankle Status Post Reconstruction Tendon Ligament Injury	5271	10%	20060718	
Left Ankle Peroneus Brevis Tendon Tear	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Bilateral Patellofemoral Chondromalacia.  The PEB combined the knee conditions under a single disability rating, analogously coded 5099-5003 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 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 of the PEB.

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s bilateral knee condition began in October 2002 while deployed to Iraq.  An MRI performed on 18 January 2006 showed bilateral patella chondromalacia, left meniscal tear with degenerative changes, and a small right effusion.  The 26 January 2006 MEB orthopedic examination, 5 months prior to separation, noted complaints of bilateral knee pain aggravated by prolonged standing, sitting, or walking up or down stairs.  The CI reported popping in both knees and occasional giving way secondary to pain.  Physical examination showed a relatively normal gait and stable ligaments.  There was significant bilateral pain at the patellar facet and exquisite tenderness with patellofemoral grind testing.  Bilateral knee range of motion (ROM) was “full”; painful motion was not addressed.  The 15 March 2006 MEB NARSUM examination, 3 months prior to separation, showed bilateral knee tenderness along the patellar margins and positive patellar apprehension and grind testing.  Knee ROM was not addressed.  The 21 March 2006 MEB physical therapy (PT) evaluation showed right knee extension to flexion of 0 to 135 degrees (normal 0 to 140) and left extension to flexion was 0 to 131 degrees; left knee painful motion was noted.  

At the 18 July 2006 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported bilateral knee pain with limitations of prolonged standing, running, and climbing stairs.  Physical examination noted bilateral knee extension to flexion of 0 to 135 degrees without objective evidence of pain on motion; however, there was extensive bilateral crepitation with motion.  

The PEB rated the bilateral knee condition 10%, coded 5099-5003 (analogous to arthritis, degenerative), citing pain limited motion, positive radiographs, and two joints involved.  The VA rated each knee condition 10%, coded 5299-5014 (analogous to osteomalacia), based on the C&P examination, citing loss of motion in flexion to 135 degrees.  The panel first considered if the knees, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  A bilateral condition was profiled, implicated in the commander’s statement, and judged to fail retention standards.  Panel members agreed the evidence reasonably justified that the functional limitations of each knee contributed to the CI’s inability to perform his military duties, and accordingly separate disability ratings are recommended.  

The panel agreed there was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261) for either knee.  However, there was sufficient evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40, and 4.45).  The evidence did not support a rating for dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258).  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).  There was no VASRD §4.71a higher rating option than the 10% adjudicated by the PEB under any applicable code.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for each knee, coded 5014.

Left Ankle Subtalar Osteoarthritis.  According to the STR and MEB NARSUM, the CI’s left ankle dislocation condition began in 1998.  He underwent closed reduction with casting followed by a course of physical therapy.  The MEB orthopedic examination noted complaints of left knee pain.  Physical examination showed “full” left ankle dorsiflexion and plantar flexion; painful motion was present.  The MEB NARSUM examination noted complaints of persistent pain with daily swelling.  The left ankle gave way when walking on uneven ground.  Physical examination showed no ankle tenderness or swelling.  Left ankle ROM was not addressed.  The MEB PT evaluation revealed left ankle dorsiflexion to 4 degrees (normal 20) and plantar flexion was 50 degrees (normal 45); painful motion was present.  The C&P examination showed an antalgic gait favoring the left ankle.  ROM was noted as 10 degrees of dorsiflexion and plantar flexion to 20 degrees; painful motion was elicited.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left ankle dislocation condition 0%, coded 5003, citing pain limits the ROM and only 1 joint involved.  The VA rated the left ankle condition 10%, coded 5271 (ankle, limited motion), based on the C&P examination, citing pain on motion.  The panel agreed there was no limitation of motion which supported a rating under 5271, based on the MEB orthopedic and VA examinations proximate to separation. . However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40, and 4.45).  There was no ankylosis of the ankle or subastragalar (sub-tarsal) joints, no malunion of the os calcis (calcaneus) or astragalus (talus), and no astragalectomy for consideration under the respective diagnostic codes (5270, 5272, 5273, or 5274).  The panel also considered whether the VASRD code for other foot injuries (5284) provided for a higher rating (§4.7).  However, all panel members agreed that the impairment did not approximate “moderately severe” to support the next higher 20% rating under this code.  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 left ankle condition, coded 5271.  

Contended PEB Condition:  Left Ankle Peroneus Brevis Tendon Tear.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled or judged to fail retention standards. Left ankle instability was not implicated in the commander’s statement.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the bilateral knee condition, the panel recommends that each joint be separately adjudicated as follows:  an unfitting right knee condition coded 5014 and rated 10%; and an unfitting left knee condition, coded 5014 and rated 10%, both IAW VASRD §4.71a.  In the matter of the left ankle dislocation condition, the panel recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  In the matter of the contended left ankle tendon tear condition, the panel agrees it cannot recommend it for additional disability rating.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Patellofemoral Chondromalacia 	5014	10%	
Left Patellofemoral Chondromalacia 	5014	10%	
Subtalar Left Ankle Osteoarthritis	5271	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170301, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008633, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure