RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01800
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070520

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Infantryman, medically separated for “chronic bilateral knee pain” with a disability rating of 10%.

CI CONTENTION:  Right knee and right shoulder conditions have worsened and support a higher rating.  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 - 20070314	VARD - 20070717	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	10%	Left Knee Chondromalacia	5260-5014	10%	20070517	
			Right Knee Chondromalacia…	5260-5014	10%		
Chronic Intermittent Right Shoulder Pain	Not Unfitting	Right Shoulder Tendonitis…	5201-5024	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the bilateral knee conditions under a single disability rating, coded analogously 5099-5003 (degenerative arthritis) and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  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 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 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.

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s bilateral knee conditions began in January 2006 after a very hard airborne jump.  He underwent a right knee arthroscopy which revealed a lateral meniscus tear.  The 15 February 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of bilateral right knee pain.  Physical examination showed right knee flexion as 120 degrees (normal 140) and normal extension with repetition.  Left knee ROM showed flexion of 137 degrees and normal extension with repetition.  Bilateral painful motion was not addressed.  

At the 17 May 2007 VA Compensation and Pension (C&P) general examination, 3 days before separation, the CI reported bilateral knee pain.  Physical examination showed an antalgic gait.  There was no bilateral knee edema, tenderness or instability.  Strength, deep tendon reflexes and sensory examinations were normal.  Right knee ROM showed flexion of 120 degrees and normal extension; mild pain was elicited with repetition, but without a decrease in ROM. There was neither fatigability nor incoordination.  Left knee ROM showed flexion of 125 degrees and normal extension; no pain was elicited with repetition.  There was also no fatigability, incoordination nor a reduction in ROM.  Though there were no X-rays reported for the right knee, left knee X-rays showed no bony, articular or soft tissue abnormalities.  

At the 6 May 2008 C&P Joints general examination, less than 12 months after separation, the CI reported bilateral knee pain.  Physical examination revealed full bilateral ROM.  Painful motion was not addressed.  Right knee X-rays revealed no bone or joint abnormality.  There was no evidence of fluid seen in region of suprapatellar bursa.  Left knee x-rays were not reported.

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 the USAPDA pain policy.  The VA rated each knee condition separately at 10%, dual coded 5260-5024 (leg, limitation of flexion-tenosynovitis), based on the C&P general examination, citing painful or limited motion of a major joint. 

Although the right knee was the only knee surgically repaired, both knees were diagnosed by an orthopedic specialist at 4 months prior to separation as “chronic anterior knee pain bilaterally that has not responded to any medical treatment…”  Additionally, a permanent L3 profile for bilateral knee pain was rendered, the left knee was implicated in the commander’s statement as duty limiting, and both the MEB NARSUM and MEB indicated the bilateral knees did not meet retention standards.  The panel concluded that there was not a preponderance of evidence to overcome the panel’s presumption that either of the bundled left and right knee pain conditions was reasonably considered separately unfitting.  

The panel then considered its rating recommendation for the unfitting left and right knee conditions at the time of separation.  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.  There was right knee persistence of pain after partial meniscal surgery which warrants a 10% rating under code 5299-5259 code (cartilage, semilunar, removal of symptomatic).  There was no left knee history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), nor 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 left knee radiographic or diagnostic imaging criteria to warrant a rating under code 5003.  Hence, there is no VASRD §4.71a code to warrant a 10% rating for the left knee condition.  Therefore, a combined right knee 10% plus left knee 0% rating recommendation provides no rating advantage to the CI.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knee condition.  

Contended PEB Condition:  Right (Dominant) Shoulder Pain.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was implicated in the commander’s statement noting the CI reported pain in his right shoulder.  However, there was no permanent U3 profile for the right shoulder condition.  The CI was not limited from performing pushups, constructing an individual fighting position or upper body weight training.  The MEB adjudged that the CI’s “chronic intermittent right shoulder pain” did not fall below retention standards.  The panel majority determined there was not a preponderance of performance-based evidence from the record that the right shoulder condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel majority concluded there was insufficient cause to recommend a change in the PEB fitness determination for contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended right shoulder condition, the panel majority agrees it cannot recommend it for additional disability rating.  The single voter for dissent recommends modification to 10%, coded 5099-5003, for the right shoulder and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170306, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180010343, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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 been provided to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure