RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03159
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Chemical Operations Specialist, medically separated for “chronic bilateral knee pain” with a disability rating of 10%.  

CI CONTENTION:  The left knee was not taken into account.  Review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) was requested.  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 - 20060808	VARD - 20070125	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	10%	Right Knee Meniscus Tear	5261	10%	20061115	
			Effusion of the Left Knee	5257	0%	20061115	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, analogously coded 5099-5003 (arthritis, degenerative) 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 of the PEB.  The evidence for the right and left knee condition is presented together, with attendant recommendations regarding separate unfitness and rating in the rating discussion.  

According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent right knee meniscal surgery and debridement in July 2005.  The CI continued to have right knee pain and by December 2005, the CI had developed left knee pain due to favoring the right knee.  A left knee MRI in April 2006 showed a small effusion with a bone island.  A right knee MRI at the same time showed surgical changes with some thinning cartilage and a small effusion.  
The 12 June 2006 physical therapy (PT) range of motion (ROM) study, 3 months prior to separation, noted 3/10 pain prior to ROM testing.  After repetition, right knee flexion was 100 degrees (normal 140) and extension was 0 degrees (normal), and left knee flexion was 115 degrees and extension was 0 degrees.  Pain was noted at 6/10 for each knee during ROM testing.  
During the 21 June 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months prior to separation, physical examination showed mild crepitus on bilateral knee extension.  The MEB NARSUM examination, the same day, noted complaints of constant bilateral knee pain that gradually increased over the course of the day.  Physical examination showed a normal gait. 

At the 15 November 2006 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported right knee pain, popping, cracking, numbness and cramping.  Left knee pain was also reported.  The ROM evaluation showed right knee extension of 9 degrees and flexion of 85 degrees.  Repetitive movement caused increased right knee pain and decreased extension to 10 degrees.  Left knee ROM testing showed extension of 0 degrees and flexion of 120 degrees with pain on repetition and pain with passive flexion. 

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, citing the USAPDA pain policy.  The VA rated the right knee condition 10%, coded 5261 (leg, limitation of extension of) based on the C&P examination, citing limited extension to 10 degrees.  The VA rated the left knee condition 0%, coded 5257 (knee, other impairment of), citing no evidence of recurrent subluxation or slight lateral instability of the knee.  

As previously elaborated, the panel must first consider whether the right and left knee conditions remained separately unfitting after being de-coupled from the combined PEB adjudication.  In this case, both knees were profiled, implicated in the commander’s statement and judged to fail retention standards.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that each knee condition 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.  

Right Knee.  There was evidence of painful motion with functional loss supporting a 10% rating based on §4.59, §4.40 and §4.45 on the PT and VA examinations.  Alternatively, the VA examination documented limited extension sufficient for a 10% rating under code 5261, and persistent pain after meniscal surgery warranted a 10% rating under the analogous 5259 code (cartilage, semilunar, removal of symptomatic). However, meniscal coding includes painful motion and therefore dual rating would result in pyramiding (VASRD §4.14).  There was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258).  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  

Left Knee.  There was no limitation of motion that supported a rating under the diagnostic codes for limitation of flexion or extension, no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions or history of surgery to remove a meniscus to support a rating for those conditions.  However, there was evidence of painful motion with functional loss supporting a 10% rating based on §4.59, §4.40 and §4.45 as recorded on the PT and VA examinations.  After due deliberation, and considering all the evidence, the panel recommends a separately unfit determination with a disability rating of 10% for the right knee condition coded 5259-5261, and a separately unfit determination with a disability rating of 10% for the left knee condition coded 5299-5260.  

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 5259-5261 and rated 10%, and an unfitting left knee condition, coded 5299-5260 and rated 10%, both IAW VASRD §4.71a.  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	
Chronic Right Knee Pain	5259-5261	10%	
Chronic Left Knee Pain	5299-5260	10%	
COMBINED	20%	

The following documentary evidence was considered:

[AR NUMBER], XXXXXXXXXXXXXXXXXX 

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Dear XXXXXXXXXXXXXXXXXX

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. 

Enclosure