RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX		CASE: PD-2017-02318 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20050216

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

CI CONTENTION: “My knees also were swollen a lot and still happens to this day…” She also requested review of additional conditions not identified by 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 - 20041212	VARD - 20050310	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	10%	Retropatellar Pain Syndrome, Left Knee	5260	10%	STR	
			Retropatellar Pain Syndrome, Right Knee	5260	10%	STR	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Chronic Bilateral Knee Pain. The PEB combined the right and left knee conditions under a single service disability rating, coded analogously to 5003 and rated 10% with application of the US Army Physical Disability Agency 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 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.

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s knee condition began in August 2002 with no history of injury to either knee. During the 8 November 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported that her knee had been bothering her for almost 3 years. Physical examination showed both knees to have good active and passive range of motion (ROM). There was no evidence of instability or meniscal pathology. The examiner noted that an MRI suggested prior meniscus injury in the right knee.

The 3 December 2003 MEB NARSUM examination, 2 months prior to separation, noted complaints of knees giving out after excessive use along with constant pain and swelling. Physical examination of the knees revealed no effusion on either side. There was no retropatellar crepitance, but there was patellar "snapping" on the right with extension of the knee. Testing for meniscal pathology (Murray’s) was negative and there was no specific joint line tenderness. There was no evidence of instability. Both knees had extremely mobile patellas with lateral tilting and abnormal tracking on extension. Q angles bilaterally were 16 degrees. Knee ROM was from 0 degrees extension (normal) to 125 degrees of flexion (normal 140).

At the 7 June 2005 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported intermittent throbbing pain in both knees with instability of the right knee only. Physical examination of both knees revealed normal appearance without evidence of heat, redness, swelling, or tenderness. The examiner stated the CI had full painless ROM of both knees and bothwere stable; posture and gait were normal.

The panel first considered if the each of the right and left knee conditions, having been de- coupled from the combined PEB adjudication, remained separately unfitting as established above. In this case, both knees were considered to fail retention standards; both were implicated by the NARSUM and the commander’s statement; and, both were profiled. The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either knee over the other. Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with military occupational specialty performance, members agreed that each knee was reasonably justified as separately unfitting.

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 (degenerative arthritis), citing slight/constant pain. The VA rated the right and left knee conditions 10% each, coded 5260 (leg, limitation of flexion), based on the STR, citing some loss of motion and functional loss of knees giving out with long periods of standing and weight bearing.

For both the left and right knee conditions, there was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261). 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, 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). However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40 and 4.45) for each knee. 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 and 10% for the left knee pain condition, coded 5099-5003.

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 5099-5003 and rated 10%, and an unfitting left knee condition coded 5099-5003 and rated 10%, both IAW VASRD
§4.71a.

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Knee Pain	5099-5003	10%	
Chronic Left Knee Pain	5099-5003	10%	
	COMBINED	20%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170214, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20190012332, XXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXX

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