RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01911
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060403

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an Active Guard/Reserve (AGR) E5, Administration Specialist, medically separated for “chronic 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 PEB, but determined 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.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating 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 the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20060112	VARD - 20060918	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	Bilateral Knee Condition	5299-5260	NSC	20060530	
Bilateral Cubital Tunnel Syndrome	Not Unfitting	Left Cubital Tunnel Syndrome	8599-8616	0%		
		Right Cubital Tunnel Syndrome	8599-8616	NSC		
Anxiety/Depression		Panic Disorder without Agoraphobia	9412	30%	20060808	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single service disability rating, analogously coded 5099-5003 rated 10% and rated for pain.  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 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 conditions are presented with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI developed right knee pain in 1996 without specific injury, while on active duty.  The CI separated from active duty in 1997 and when she re-entered active duty in 2000, she developed bilateral knee pain with physical training.  The bilateral knee pain was treated conservatively until the CI could no longer satisfactorily perform her military duties.  Bilateral knee X-rays performed on 10 December 2004 and 1 November 2005 were normal.  There was no surgical indication. 

During the 27 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), almost 5 months prior to separation, the CI reported bilateral knee pain.  Physical examination recorded no bilateral knee swelling, crepitus, or deformity; patella compression, flexion and extension all elicited pain.  At the 1 November 2005 MEB NARSUM, the CI reported chronic bilateral knee pain.  Physical examination revealed an antalgic gait.  There was no bilateral knee swelling, and instability testing and reflexes were intact.  Bilateral knee flexion was 125 degrees.  Extension and painful motion were not addressed.  A physical therapy (PT) examination one week later recorded an antalgic gait.  Left knee flexion was 120 degrees and the right was 125 degrees.  Bilateral extension was 0 degrees and painful motion was elicited. 

During the 16 November 2005 MEB orthopedic examination, 5 months before separation, the CI reported chronic bilateral knee pain.    Physical examination revealed an antalgic gait.  There was no bilateral knee swelling, crepitus, or deformity, but flexion and extension elicited retropatellar (below the knee cap) pain.  Right knee flexion was 125 degrees and left 124 degrees (normal 140).  Painful motion was present.

At the 30 May 2006 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported popping in both knees with intermittent pain four times a week elicited by physical activity.  She reported she last attended PT in 2003 and the “last time she was seen was two years ago in 2004.”  She took Mobic (nonsteroidal anti-inflammatory drug) for [pain] treatment.  Physical examination showed a normal gait, no bilateral knee swelling, crepitus, tenderness, and [patella] subluxation; instability testing was negative.  Bilateral knee flexion was 140 degrees and extension was 0 degrees.  There was no pain after repetitive use.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 0%, analogously coded 5003 (degenerative arthritis), citing no objective findings for knee pain and no pain medications.  The VA did not service-connect the bilateral knee condition, analogously coded 5299-5260 (leg, limitation of flexion), based on the C&P examination, citing no permanent residual or chronic disability subject to service connection was shown by the service medical records or demonstrated by evidence following service.  

The panel first considered whether each knee condition remained separately unfitting, having been decoupled them from the combined PEB adjudication.  The bilateral knee condition was profiled, but not explicitly implicated by the commander’s performance statement (commander referenced the physical profile), but the knees did fail retention standards.  Objective clinical STR and VA evidence remained essentially equivocal to both knees without significant indication of either side being more impaired than the other.  There was no preponderance of evidence showing either knee was not reasonably justified as separately unfitting.  Accordingly, the panel recommends separate service ratings for the right and left knees.

In assigning probative value to the somewhat conflicting examinations, the panel noted bilateral X-rays were normal and the VA ROM examination was consistent with the STR examinations proximate to separation.  Therefore, the panel majority placed the most probative value on the VA examination, which was most proximate to separation.  The panel majority agreed there was no evidence of painful motion with functional loss to support a 10% rating for either knee (based on §§4.59, 4.40 and 4.45).  The panel majority agreed there was no limitation of flexion or extension (5260 or 5261), no meniscal surgery (5259), no evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), nor fracture, nonunion or malunion of the femur or tibia causing a knee impairment (5255, 5262) to support a rating for either knee under those codes.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knee condition.

Contended PEB Conditions:  Bilateral Cubital Tunnel Syndrome and Anxiety/Depression.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  In the matter of the bilateral cubital tunnel syndrome, the contended condition was not profiled or implicated in the commander’s statement, and did not fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.

In the matter of the anxiety/depression condition, the panel deliberated and agreed the commander implicated the CI’s panic attacks as the primary ailment for being out of work; however, the commander called the CI’s intentions into serious question due to her denial of receiving mental health treatment.  According to the 11 November 2005 MEB NARSUM, the CI first began having panic attacks in March 2003 and anxiety in April 2003 after her husband deployed to Iraq.  During that period, she attended weekly psychotherapy sessions and was subsequently prescribed psychotropic medication for anxiety.  Panic attacks continued until May 2004 secondary to decreased stress.  Her panic attacks returned in July 2005 with increased work and family stress.  The MEB was initiated a few months thereafter due to her medically disqualifying bilateral knee condition.  The CI’s mental health condition was not profiled and did not fail retention standards.  Consequently, the panel agreed 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 either of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic bilateral knee condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent recommends a modification to 20% and did not elect to submit a minority opinion. In the matter of the contended bilateral cubital tunnel syndrome and anxiety/depression, the panel recommends no change from the PEB determinations as not unfitting.  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.  

AR20190002395, XXXXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXXXX:

	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.