RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03205
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050605

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for “chronic bilateral knee pain” with a disability rating of 0%.  

CI CONTENTION:  No specific contention was made.  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 - 20050413	VARD - 20060130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	Meniscal Tear, Left Knee	5257	10%	20051003	
			Status Post Right Knee ACL Surgery 	5259	0%	20051003	
COMBINED RATING:  0%	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, coded analogously to 5003 and rated 0% 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 are presented separately, with attendant recommendations regarding separate unfitness and rating, if indicated. 

Left Knee Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI injured his left knee in June 2002 while playing basketball.  After initial treatment, he was able to return to duty and did not seek medical attention again until September 2004, when his knee “slipped.”  Left knee X-rays on 14 September 2004 were normal, but an MRI on 28 October 2004 showed a medial meniscus tear.  The CI was offered surgery but declined.  At the 10 December 2004 orthopedic clinic appointment, 6 months prior to separation, the examiner recorded full left knee range of motion (ROM) with no effusion, swelling or erythema.  Painful motion was not addressed, but the patella demonstrated crepitus.  There was no evidence of instability, and testing for meniscal pathology was positive; the CI again declined recommended surgery.   

The 21 January 2005 permanent profile listed left knee osteoarthritis and right knee pain.  The commander’s statement dated 28 February 2005 did not specifically identify the CI’s medical conditions, but noted his profile limitations prevented successful duty performance. The 8 March 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of intermittent left knee pain, with sharp pain once per month.  Physical examination showed a positive patellofemoral grinding test, but was otherwise normal.  Physical therapy ROM measurements for the MEB on 11 April 2005, 2 months before separation, showed left knee hyperextension of 5 degrees (normal 0) and flexion of 115 degrees (normal 140), without pain.  

At the 3 October 2005 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported left knee pain aggravation with prolonged walking, running or bending.  The provider noted a normal gait, no joint effusion or crepitus, and no evidence of instability or meniscal pathology.   Left knee ROM was full with pain occurring at 140 degrees.  

The panel first considered whether the left knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Members agreed the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

The panel directed attention to its rating recommendation for the unfitting left knee condition based on the above evidence.  The PEB rated the bundled bilateral knee condition 0%, analogously coded 5099-5003 (degenerative arthritis), citing slight and intermittent pain under the USAPDA pain policy.  The VA rated the left knee condition 10%, coded 5257 (knee, other impairment of), based on the C&P examination.  Members agreed there was no limitation of flexion or extension that supported a rating under VASRD diagnostic codes 5260 or 5261.  However, the panel majority agreed there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) with pain with meniscal testing noted at the orthopedic evaluation in December 2004, and painful motion noted at 140 degrees of flexion by the C&P examiner.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a separately unfit determination with a disability rating of 10% for the left knee condition, coded 5299-5260.  

Right Knee Pain.  According to the STR and MEB NARSUM, the CI underwent right knee anterior cruciate ligament (ACL) reconstruction surgery and medial meniscal tear debridement in May 2003.  Post-surgical STR entries showed a normal recovery and return to duty.  There was a temporary L3 profile in record dated 30 May 2003, with an end date of 30 June 2003.  However, the CI failed an alternate walk event during a physical fitness test on 14 May 2004.  

At the MEB NARSUM examination, the CI reported that between June 2002 (when he injured his left knee) and September 2004 (when he sought treatment again for the left knee), he did not perform strenuous activities because he had profiles for right knee problems.  Physical examination revealed mild right knee swelling and MEB PT ROM measurements on 11 April 2005 showed right knee hyperextension of 3 degrees and flexion of 112 degrees, with painful motion. 

During the C&P examination, the CI reported difficulty flexing his right knee because of residual pain.  Physical examination showed a normal gait with no crepitus or joint effusion.  Right knee ROM was flexion of 130 degrees, with pain occurring at 130 degrees, and extension of 0 degrees.  There was no evidence of instability or meniscal pathology.  

The panel first considered whether the right knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Panel members agreed the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

The panel directed attention to rating recommendation for the unfitting right knee condition at the time of separation.  As noted above, the PEB rated the bundled bilateral knee condition 0%.  The VA rated the right knee condition 0%, coded 5259 (cartilage, semilunar, removal of, symptomatic), based on the C&P examination, citing a noncompensable evaluation unless removal of the semilunar cartilage was symptomatic.  Members agreed there was no limitation of flexion or extension that supported a rating under codes 5260 or 5261.  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) based on painful motion noted at the C&P examination.  Code 5259 code was also applicable in this case, and provided an alternate route to a 10% rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separately unfit determination with a disability rating of 10% for the right knee condition, coded 5299-5260.  

BOARD FINDINGS:  In the matter of the bilateral knee condition, the panel majority recommends that each joint be separately adjudicated as follows: an unfitting left knee condition and an unfitting right knee condition, each rated 10%, both coded 5299-5260 IAW VASRD §4.71a.  The single voter for dissent recommended modification to an unfitting left knee condition, rated 0%, and an unfitting right knee condition, rated 10%, and both coded 5299-5260 IAW VASRD §4.71a, but did not elect to submit a minority opinion.  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 Left Knee Pain	5299-5260	10%	
Chronic Right Knee Pain	5299-5260	10%	
COMBINED	20%	

The following documentary evidence was considered:

AR20180012272, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

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