RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01689
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070819

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Food Service Operator, medically separated for “bilateral knee pain” with a disability rating of 10%.  

CI CONTENTION:  his knee condition continues to worsen and negatively impact daily activities.  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 - 20070712	VARD - 20080201	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5009-5003	10%	Left Knee Strain	5262	10%	20070920	
			Right Knee Strain	5262	10%	20070920	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Bilateral Knee Pain.  The PEB combined the right knee pain and left knee pain conditions as a single unfitting condition analogously coded 5099-5003 and rated 10% with application of the US Army Physical Disability Agency pain policy AR 635-40 B24.f.  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 or implied adjudication that each condition was separately unfitting.  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.  The evidence for the right and left knee pain conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s bilateral knee pain condition began in December 2005 with no specific injury.  A 19 December 2005 bilateral knee examination revealed normal range of motion (ROM) with right knee tenderness.  At a physical therapy clinic visit on 28 March 2006 the CI complained of bilateral pain in the hamstring tendon insertion area and inferior patellar region.  Physical examination revealed an antalgic gait with moderate bilateral hamstring and iliotibial band restrictions.  Knee pain was not relieved by a brace or taping.  A right knee MRI dated 2 October 2006 was negative.  At an orthopedic examination on 4 October 2006 the CI reported bilateral patellofemoral pain accompanied by popping and grating sounds.  No limping was observed.  A right knee arthroscopy was considered.  Bilateral knee X-rays on 20 September 2007 were negative.  

During the 26 January 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported bilateral knee pain.  Physical examination revealed positive bilateral patellar apprehension and pain with deep knee bending.  The 3 March 2007 MEB NARSUM examination, 5 months prior to separation, noted complaints of bilateral knee pain.  Physical examination showed bilateral patellar tendon tenderness without instability or a meniscal tear.  Bilateral lower extremities were neurovascularly intact.  The examiner diagnosed bilateral retropatellar pain syndrome.  The MEB physical therapy examination on 31 May 2007, 4 months before separation, showed right knee extension to 0 and flexion to 100 degrees (normal 0 to 140); and left knee extension to 0 degrees and flexion to 90 degrees; bilateral pain-limited motion was present.  

At the 20 September 2007 VA Compensation and Pension (C&P) general examination, 1 month after separation, the CI reported constant bilateral knee pain with weakness after moving too much; stiffness when waking up, sitting, or standing too long; and giving way.  Physical examination showed bilateral knee tenderness.  There was no bilateral knee laxity, subluxation, edema, effusion, weakness, redness, heat, nor guarding of movement.  Bilateral knee ROM was extension to 0 degrees and flexion to 130 degrees.  Neither joint was limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetition.  Bilateral knee X-rays on 20 September 2007 were negative.  

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 (arthritis, degenerative), citing decreased ROM secondary to pain.  The VA rated each knee condition 10%, both coded 5262 (tibia and fibula, impairment with slight knee disability), citing limited and painful knee motion.  

The panel first considered if right knee pain was reasonably justified as separately unfitting as established above.  Panel members agreed that the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties; therefore, a separate disability rating is recommended.  The panel agreed there was no significant limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40, and 4.45).  The examinations proximate to separation did not demonstrate the presence of significant ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259), to support a rating under the respective codes.  There was no 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).  A rating higher than 10% is not available under any applicable code.  

The panel then considered if left knee pain was reasonably justified as separately unfitting as established above.  Members agreed that the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties; accordingly a separate disability rating is recommended.  The panel agreed there was no significant limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40, and 4.45).  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259), to support a rating under the respective codes.  There was no 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).  No rating higher than 10% is available 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 the right knee condition, coded 5299-5260; and a disability rating of 10% for the left knee condition, coded 5299-5260.  

BOARD FINDINGS:  In the matter of the bilateral knee condition, the panel recommends a right knee disability rating of 10%, coded 5299-5260 IAW VASRD §4.71a; and a left knee disability rating of 10%, coded 5299-5260 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	
Right Knee Pain	5299-5260	10%	
Left Knee Pain	5299-5260	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170304, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008638, 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