RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2017-03755
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051021

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

CI CONTENTION:  “New issues found by VA/old issues worse.”  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 - 20051003	VARD - 20060405	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5003	10%	Left Knee Patellar Tendonitis	5261	10%	20051019	
			Right Knee Patellar Tendonitis	5261	10%	20051019	
Right Great Toe	Not Unfitting	Fracture, Right Great Toe with Metatarsalgia	5279	10%	20051019	
Peptic Ulcer Disease	Not Unfitting	S/P Cholecystectomy with Gastric Ulcer	73997346	10%	20051019	
Chronic Dyspepsia	Not Unfitting					
Chronic Diarrhea	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded 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 adjudicated by the PEB.  The evidence for the right and left knee conditions is presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent left knee arthroscopic surgery in March 2002, but no significant pathology was found.  He injured his right knee in April 2005 while playing football.  An MRI of the right knee in April 2005 showed possible posttraumatic or degenerative lateral meniscal change.  An MRI of the left knee that same day showed a possible meniscal tear or degenerative change.

The 11 August 2005 MEB NARSUM examination, 2 months prior to separation, noted complaints of knee pain, left greater than right, that prevented running, military occupational specialty  duties and rucking.  The CI reported “considerable pain with standing.”  Physical examination showed no effusion in either knee.  Range of motion (ROM) testing showed extension-to-flexion of 0-135 degrees (normal 0-140).  Provocative testing showed no evidence of instability or meniscal pathology in either knee.  There was no evidence of painful motion, and patellar tenderness was absent in both knees.  

At the 19 October 2005 VA Compensation and Pension (C&P) examination, 2 days before separation, the CI reported daily bilateral knee pain, worse with standing, running, walking and sporting activities.  Physical examination showed an antalgic gait to the left due to knee pain.  There was bilateral patellar tenderness and tibial tenderness.  Bilateral knee ROM testing showed flexion of 140 degrees and extension of 0 degrees, painful motion was not addressed, but there was crepitus in each knee.  The examiner estimated a 20 degree loss of function with a flare-up of pain, but conceded, “The exact degree of dysfunction [was] not clinically possible [to predict].”  

Panel members first considered if the left and right knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The permanent profile listed bilateral knee pain; the commander’s statement implicated both the left and right knee injuries, and the MEB adjudged bilateral knee pain failed retention standards.  The panel concluded there was not a preponderance of evidence in the service records which overcame the presumption that the left and right knee conditions were reasonably considered separately unfitting.  

The panel directed attention to its rating recommendations for the unfitting left and right knee conditions based on the above evidence.  The PEB rated the bilateral knee condition 10%, coded 5003 (degenerative arthritis), citing arthritis with X-ray evidence of two or more major joints.  The VA rated the right and left knee conditions 10% each, coded 5261 (limitation of leg extension), based on the C&P examination, citing functional loss of tenderness in the patella with crepitance.

There was no evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40 and 4.45) for either knee.  There likewise was no limitation of motion which attained a 10% rating under the diagnostic codes for limitation of flexion or extension (5260, 5261) for either knee.  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 for either knee.  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) for either leg.  No additional functional limitation was evidenced by the examinations.  Therefore the panel concluded there was insufficient evidence to support a rating higher than the 10% rating for the bilateral knee condition as adjudicated by the PEB.  After unbundling the knees, the panel’s rating recommendation is the same as that of the PEB and no change to the PEB’s combined rating is recommended.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knee condition.  

Contended PEB Condition:  Right Great Toe, Peptic Ulcer Disease, Chronic Dyspepsia and Chronic Diarrhea.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  Although the right great toe was noted in the commander’s statement, it was not profiled and did not fail retention standards.  None of the other conditions were profiled or implicated in the commander’s statement and did not fail retention standards.  There was no performance-based evidence from the record that any of the contended 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 determinations for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended right great toe, peptic ulcer disease, chronic dyspepsia and chronic diarrhea conditions, the panel recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

PD-2017-03755

AR20190011818, XXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

PD-2017-03755