SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD 20762

XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX

Dear XXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-02651.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended modification of your assigned disability rating without re-characterization of your separation with severance pay. 

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  This will not result in any change to your separation documents or the amount of severance pay you are entitled to.  Disability severance pay is computed the same regardless of a rating of 0, 10 or 20 percent.

						

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-02651
BRANCH OF SERVICE:  air force	SEPARATION DATE:  20070611

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Technical Applications Specialist, medically separated for “bilateral knee pain” with a disability rating of 10%.

CI CONTENTION.  In addition to his knees, sleep apnea and asthma should have been considered at the time of the Medical Board.  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 - 20070430	VARD - 20071015	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	Right Knee Gonarthrosis 	5010-5260	10%	20070803	
			Left Knee Gonarthrosis 	5010-5260	10%		
Obstructive Sleep Apnea (OSA)	Category II	OSA and Asthma	6602-6847	50%		
Asthma						
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:

Bilateral Knee Pains.  The PEB combined the right and left knee conditions under a single disability rating, analogously coded 5099-5003 and rated 10%.  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 of the PEB.

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent right knee surgery with lateral release) in March 2006.  He subsequently underwent left knee surgery with arthroscopic lateral release and chondroplasty (cartilage removal) in August 2006.  He underwent a second left knee procedure in February 2007 with plica removal (4 months before separation).  Imaging (corroborated by operative findings) demonstrated significant chondromalacia (damaged joint cartilage) and degenerative changes for both knees. 

There was ample documentation in STR provider entries for measured range of motion (ROM) for both knees, including from the final post-operative period for the left knee.  The lowest recorded measurement of flexion for either knee (excluding immediate post-operative notes) was 117 degrees (normal 140) for the left knee, a month after the first surgery (above).  Measured extension for both knees was invariably 0 degrees (normal).  There were no entries that specified painful motion of either knee.  There was ample STR documentation of a normal gait without persistent effusion, joint impingement (locking) or instability.  There was no contrary evidence to any of the preceding VASRD-ratable criteria for either knee.

The 27 March 2007 MEB NARSUM examination, 2 months prior to separation, documented persistent bilateral knee pain, currently worse on the right, without note of subjective locking or instability.  The only specified functional limitation was inability to run 100 yards.  The physical examination did not address the knees.  The most probative STR examination for those findings was an earlier general primary care examination on 17 January 2007.  This recorded (all findings bilateral) a normal gait, medial joint tenderness, no effusion, no instability, full joint strength, flexion to 130 degrees and extension 0 degrees (no note of painful motion).  The physical therapy (PT) MEB ROM evaluation on 15 March 2007 showed flexion of 135 degrees on the right and 125 degrees on the left; bilateral extension was 0 degrees and there was no evidence of painful motion.  The MEB’s AF Form 618 submission specified a bilateral knee condition and neither the L3 profile nor the commander’s performance statement was probative to separate unfitness of either knee.

The 3 August 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, noted complaints of constant bilateral knee pain (no differentiation in right versus left severity) worsened by walking and associated with subjective instability but no locking.  The physical examination (all findings bilateral) recorded a normal gait, medial and lateral tenderness without note of swelling or effusion, no instability and no impingement.  Measured ROM was flexion to 120 degrees right and 130 degrees left with bilateral extension of 0 degrees, specifying painful motion at end range but no ROM degradation with repetition of either knee.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s combined 10% rating, as elaborated above, cited “full ROM bilaterally.”  The VA rated the left and right knee conditions 10% each, dual coded 5010-5260 (traumatic arthritis-limitation of knee flexion), based on the C&P examination, citing “painful healed injury...with limitation of motion.”  

Panel members first considered if the bilateral knee condition met the above threshold for separate ratings.  Although the right one was noted to be more symptomatic at the time of the NARSUM, overall the knees appeared to be of equal clinical severity.  Each manifested significant pathology and required surgical intervention.  They were both profiled and implicated in the commander’s statement.  Members thus agreed that it was fair to conclude that the impairment confined to either knee would still have posed significant duty limitations, and that it would be overly speculative to conclude otherwise.  Each knee was therefore reasonably conceded as separately unfitting, justifying separate ratings.

The panel deliberated the appropriate coding and rating recommendation for each knee.  There was no evidence of limitation of motion that would support a minimum 10% rating for either knee (codes 5260 or 5261), but members agreed that painful motion supported a 10% rating for each knee IAW VASRD §4.59.  Painful motion was explicitly documented by the C&P examiner in close proximity to separation.  Although it was not specified by any service provider, it was not overtly addressed and could not be excluded without undue speculation.  The panel also noted the application of code 5259 (cartilage, semilunar, removal of, symptomatic) was justified for the left knee and provides for a 10% rating independent of any other criterion.  There was no evidence for persistent effusion and locking (5258), nonunion or malunion (5255, 5262), or instability (5257) to support a higher rating.  There was thus no VASRD §4.71a criterion in evidence to support a rating higher than 10% for either knee.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends separate 10% ratings for each knee coded 5099-5014 (analogous to osteomalacia). 

Contended PEB Conditions:  OSA and Asthma.  The CI was first diagnosed with OSA in 2002 and began treatment with a nocturnal device (CPAP) in 2005.  His symptoms responded well and he was cleared for continued duty by an MEB in October 2006.  The NARSUM indicated that he was still “doing well” and there was no evidence of any worsening of the condition since the prior MEB.  The CI was diagnosed with asthma in 2005 that required only occasional use of a rescue inhaler (albuterol).  There was no STR evidence of any emergent treatment or other clinical acuity.  The NARSUM documented the infrequent use (once or twice a month) of albuterol and noted no functional limitations associated with asthma.  The P4 profile did not list any limitations not attributable solely to the knees (no note of CPAP, etc.), although it indicated geographic assignment limitations.  The commander’s performance statement did not implicate any medical condition other than the knees.  The VA C&P examination (proximate to separation) stated that OSA did not interfere with routine activities, and documented the same frequency (once or twice a month) of albuterol use “with good results ... does not affect his job.”

The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  With regard to OSA, it was noted the CI had already been determined to be fit for duty and the condition had remained stable with no change in severity since that decision.  There was no performance-based evidence from the record that either of the conditions 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 condition, so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the left and right knee conditions, the panel recommends that each joint be rated as separately unfitting at 10%, each coded 5099-5014 IAW VASRD §4.71a.  In the matter of the contended OSA and asthma conditions, 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.  

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	5099-5014	10%	
Left Knee Pain	5099-5014	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record