RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2017-03371
BRANCH OF SERVICE:  army	SEPARATION DATE:  20060619

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Cannon Crewmember, medically separated for “osteoarthritis, bilateral knees” with a disability rating of 10%.  

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 - 20060921	VARD - 20100630	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Osteoarthritis, Bilateral Knees…	5003	10%	Left Knee DJD	5003-5260	10%	20060417	
			Right Knee DJD	5003-5260	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Osteoarthritis, Bilateral Knees.  The PEB combined the right and left knee conditions under a single disability rating, coded 5003 (analogous to degenerative arthritis) 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 adjudicated by the PEB.  The evidence for the right and left knee conditions is presented together below, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), with no specific injury or trauma identified, the CI’s left knee pain began as early as July 2005 with right knee pain beginning subsequently in August 2005.  The CI had knee swelling, popping, right knee giving out, and difficulty going from a standing to a sitting position; he was medically evacuated secondary to his knee problems.  

At the 14 March 2006 physical therapy (PT) appointment, the CI reported pain limited bilateral knee flexion, right more than left.  The examiner recorded range of motion (ROM) for the right knee as -3-108 degrees and the left knee as 0-125 (normal 0-140).  Gait was normal, he was able to ascend and descend stairs in reciprocal pattern, but he had to hold onto the rails and there was pain going both up and down.  During the 12 April 2006 MEB NARSUM examination, 2 months prior to separation, the CI complained of bilateral knee pain rated 5/10 in severity with flares to 10/10 brought on by stairs and bending.  Physical examination revealed a normal gait and stance.  The CI complained that toe walking hurt his knee (no specific details on one knee or the other).  The knees showed bilateral crepitus (a popping or crackling noise or sensation on movement), with negative testing for ligamentous instability.  Pain limited ROM.  The PT ROMs were referenced.  

At the 17 April 2006 VA Compensation and Pension (C&P) examination, 2 months prior to separation, the CI complained of bilateral knee pain rated 7/10 in severity brought on by physical activity, but the CI also indicated there was no functional impairment resulting from the knee pain.  Physical examination showed normal gait and posture, with no assistive device used for walking.  The right and left knees were tender, and the right knee examination revealed crepitus.  The examiner recorded pain-limited ROM as 0-110 degrees for the right knee and 0-120 degrees for the left knee.  Each knee joint function was additionally limited after repetitive use by pain, fatigue, weakness, lack of endurance;  pain had the major functional impact.  Radiographic studies of the bilateral knees performed on 6 May 2009 indicated minimal degenerative changes of both knees.  

The panel first considered whether each knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The profile listed bilateral knee pain, the NARSUM implicated both knees as chronic and limiting, and the commander’s statement referred to the limits of the profile and the (non-specified) medical condition, while the MEB indicated arthritis bilateral knees did not meet standards.  The panel concluded there was not a preponderance of evidence in the STR which overcame the panel’s presumption that each unbundled knee condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting left and unfitting right knee conditions at the time of separation.  

The panel next directed attention to its rating recommendation based on the above evidence.  As discussed above, the PEB rated the bundled bilateral knee condition 10%, analogously coded 5003.  The VA rated each knee condition separately at 10%, coded 5003-5260 (degenerative arthritis - leg, limitation of flexion) based on the C&P examination, citing limited motion with X-ray evidence of degenerative arthritis and tenderness with crepitus for each knee joint.  

There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating for each knee (based on §§4.59, 4.40 and 4.45).  There was no history or evidence 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 those 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).  There was no rating higher than 10% for either knee using any alternative VASRD coding.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for each knee, coded 5003-5260.  

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 5003-5260 and rated 10%, and an unfitting left knee condition coded 5003-5260 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	
Osteoarthritis, Left Knee	5003-5260	10%	
Osteoarthritis, Right Knee	5003-5260	10%	
COMBINED	20%	

The following documentary evidence was considered:

, XXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXX

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