RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2017-02321
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051114

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Common Ground Station Operator, medically separated for “chronic pain both knees” with a disability rating of 10%.  

CI CONTENTION:  Review requested of the bilateral knee condition as well as an additional condition 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 - 20050830	VARD - 20051128	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Both Knees	5099-5003	10%	Patellofemoral Pain Syndrome, Left	5024-5260	10%	STR	
			Patellofemoral Pain Syndrome, Right	5024-5260	0%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Pain Both Knees.  The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 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 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 adjudicated by the PEB.  The evidence for the right and left knee conditions is presented together with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI experienced knee pain, greater on the right than left, in December 2002, without evidence of injury or trauma.   While knee X-rays were normal, a right knee MRI in January 2005 showed a small effusion.  At an orthopedic consult on 4 April 2005, 7 months prior to separation, he complained of mild bilateral knee pain, but denied effusions, locking or instability.  Pain worsened with prolonged sitting, stair climbing and running.  The examiner noted patellar tenderness but no grind or abnormal tracking in either knee.  There was normal bilateral range of motion (ROM) without joint line pain or ligamentous instability, and surgical intervention was not recommended.  

During the 18 July 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported bilateral knee pain, swelling, locking and giving out.  Physical examination revealed full, bilateral active ROM and no joint line tenderness, erythema, edema, effusion or ecchymosis of either knee.  Provocative testing to elicit ligamentous instability or meniscal pathology was negative.  The MEB physical therapy ROM study, on the same day, showed bilateral knee flexion of 135 degrees (normal 140), with painful motion on the left during both active and passive motion.  Right and left knee extension was lacking 5 degrees (normal 0).  

The 5 August 2005 MEB NARSUM examination, 3 months before separation, noted CI complaints of knee pain greater on the right than left, with popping and a locking sensation, and difficulties with extended driving.  Physical examination of the bilateral knees showed no instability, meniscal pathology, erythema, edema, effusion, ecchymosis or joint line tenderness.  Measured bilateral ROM showed 135 degrees of flexion and -5 degrees of extension with painful flexion on the left.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB rated the bilateral knee condition 10%, analogously coded 5099-5003 (degenerative arthritis), citing slight and constant pain IAW the USAPDA pain policy.  The VA rated the left and right knee conditions 10% and 0%, respectively, with both dual coded 5024-5260 (tenosynovitis causing limitation of leg flexion) and based on the STR, citing painful ROM for the left knee, and “no clinical findings of painful motion, tenderness, crepitus, neurological deficit or functional limitation” for the right knee.  The panel first considered whether the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting.  The commander’s statement did not explicitly identify either knee as being more or less problematic than the other, and the permanent profile indicated that both knees affected functional activities.  Panel members concluded there was not a preponderance of evidence in the service records which overcame the presumption that the left and right knee conditions were reasonably considered separately unfitting.  

Upon deliberating rating recommendations for the separate unfitting left and right knee conditions, the panel noted that although there was no compensable limitation of flexion or extension (5260, 5261) for either knee, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for the left knee.  However, there was no documentation of painful right knee motion to support a rating.  Additionally, for both knees, there was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258); history of surgery to remove a meniscus (5259); or 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).  Panel members noted that the combined 10% rating for the separate left and right knee conditions was the same as the PEB’s bundled rating, and thus provided no benefit 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.  

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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 20170225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190012148, XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXX

	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.

Sincerely,					      

Enclosure