RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-03377
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061018

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Military Police, medically separated for “chronic bilateral knee pain” with a disability rating of 0%.   

CI CONTENTION: His condition supports a higher rating.  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 - 20040914	VARD - 20070514	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	Degenerative Joint Disease, Right Knee	5260	10%	20040411	
			Degenerative Joint Disease, Left Knee	5260	10%	20040411	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, analogously coded 5099-5003 (degenerative arthritis) and rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  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 conditions is presented together, with attendant recommendations regarding separate unfitness and rating in the rating discussion.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s left knee pain condition began in March 2000 when the CI underwent a partial lateral meniscectomy for a lateral meniscus tear.  In March 2005, the CI began to complain of bilateral knee pain following a platoon march.  Physical therapy and anti-inflammatory medication were not successful in resolving the CI’s symptoms.  At the 22 March 2006 family practice visit, 7 months prior to separation, physical examination showed both knees had normal motion and movement of the patella, without tenderness or pain on motion.  There was full right and left knee range of motion (ROM), without effusion, erythema, warmth, or deformity, but in the left knee there was crepitus with flexion and tenderness laterally, including the lateral joint line.  The patella was stable, and there was no evidence of knee joint instability or meniscal pathology (negative Lachman test, anterior drawer, and McMurray test).  The 27 June 2006 permanent profile, 4 months prior to separation, listed bilateral knee pain.  The same-day commander’s statement also implicated the CI’s bilateral knee condition as impairing his ability to perform physical training due to his profile and noted that the CI’s performance of his duties was limited to activities that did not require “extensive use of the knee or when no stress is applied to the knee.”

During the 24 July 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported swelling, locking, and instability of both knees.  The right knee was more symptomatic than the left knee.  Physical examination showed both knees had tenderness and full active ROM, with normal strength and reflexes.  There was no swelling or redness present.  Only the left knee revealed grinding (crepitus) with ROM.  There was no discussion of painful motion.  On 19 June 2006, MRIs of both knees showed minimal joint effusion, early degenerative changes, and no evidence of internal derangement.  

The 15 August 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of bilateral knee pain, with the right knee more symptomatic than the left.  Physical examination showed right and left knee ROM was 0-140 degrees (normal). There was no effusion or quadriceps muscle atrophy present in either knee but there was minimal bilateral joint line tenderness.  Bilateral patellar grind was negative and there was no patellar tenderness.  Both knees were stable (negative varus and valgus stress, Lachman’s, and pivot shift tests) and there was no evidence of meniscal pathology (McMurray’s test).  In the left knee, there was no tenderness or mass in the popliteal fossa (posterior knee).  

At the 11 April 2007 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported intermittent bilateral knee pain, right more severe than the left.  He did not use a cane or a brace, although a brace was issued for the left knee.  Physical examination showed gait and station were normal.  Bilateral knee ROM was flexion of 140 degrees and extension of 0 degrees (normal).  Pain was noted at the extreme with flexion.  The CI could fully squat three times with mild pain in the knees.  There was no evidence of instability.  

The panel must first considered whether the right and left knee conditions remained separately unfitting, having been de-coupled from a combined PEB adjudication.  In this case, the bilateral knees were profiled and considered to fail retention standards.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either knee over the other.  Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with the performance of military duties, members agreed that each knee was reasonably justified as separately unfitting.

The panel directed attention to its rating recommendation for the left and right knee conditions based on the above evidence.  The PEB rated the chronic bilateral knee condition 0%, analogously coded 5099-5003 (degenerative arthritis) citing the USAPDA pain policy.  The VA rated the right and left knee degenerative joint conditions 10% each, based on the C&P examination, both coded 5260 (leg, limitation of flexion) citing limited or painful motion of a major joint.  The panel first considered a rating for the left knee condition.  The persistence of pain after meniscal surgery warranted a 10% rating under the 5259 code (cartilage, semilunar, removal of symptomatic).  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) to support a rating under that code.  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 therefore no higher than a 10% rating supported under any applicable VASRD §4.71a code.  

The panel next considered a rating the right knee condition.  There was no evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40 and 4.45) at examinations prior to separation.  There likewise was no limitation of motion which attained a 10% rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  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).  No additional functional limitation was evidenced by the examinations.  Therefore the panel concluded there was insufficient evidence to support a rating higher than 0% with any applicable VASRD §4.71a code.  

Having unbundled the bilateral knee condition, the panel’s rating recommendation was a combined 10% rating for the knees (left knee 10% and right knee 0%), however, the panel noted that a single 10% rating was also supported for the bilateral knees under 5003 for two or more major joints with imaging evidence of arthritis without limitation of motion.  Panel consensus was that the 10% rating under 5003 (bilateral knees) most appropriately reflected the CI’s disability due to the bilateral knee conditions.  After due deliberation, considering all  the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the bilateral knee condition, coded 5003.  

BOARD FINDINGS:  In the matter of the bilateral knee condition, the panel recommends a disability rating of 10%, coded 5003 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	
Bilateral Knee Pain Condition	5003	10%	

The following documentary evidence was considered:

, 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. 

Sincerely,

Enclosure