RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03840
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20051027

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

CI CONTENTION:  “Review all conditions.”  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 - 20050919	VARD - 20060407	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Bilateral Knees and Hips	5099-5003	10%	Osteoarthritis Right Hip	5003	10%	20050824	
			Osteoarthritis Left Hip	5003	10%	20050824	
			Patellofemoral Syndrome Right Knee	5260	10%	20050824	
			Patellofemoral Syndrome Left Knee	5260	10%	20050824	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Pain, Bilateral Knees and Hips.  The PEB combined the right and left knee conditions and the right and left hip conditions under a single disability rating, coded 5099-5003, and rated 10% with application of the US Army Physical Disability Agency 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 knee and hip conditions are presented below, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

Right and Left Knee Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s bilateral knee condition began in March 2004 without evidence of injury.  A bone scan on 27 July 2004 was negative.  Radiographic studies of the knees in December 2004 were normal.  The CI diagnosed with bilateral patellofemoral syndrome with right greater than left knee pain.  The 5 May 2005 orthopedic evaluation indicated the CI had failed conservative therapy and “all studies so far have not demonstrated any pathology.”  The CI reported diffuse bilateral hip and knee pain and the examiner stated “nothing seems to make her pain better.”  The examination was “suggestive of fibromyalgia” and the CI was referred back to primary care with no further orthopedic follow-up required.  

The 7 June 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of bilateral knee and hip pain.  The CI reported right knee pain was greater than the left.  She reported significant limitation due to the pain in her knees.  Testing for rheumatologic disorders was negative.  Physical examination of the knees showed an antalgic gait.  The CI was “very tender” to palpation of both knees diffusely.  There was no swelling redness, or warmth of either knee.  There was no evidence of instability or meniscal pathology, but the CI “experienced severe pain on any attempt to examine the knee.”  She was described as “very apprehensive, but cooperative.”  Bilateral knee ROM was flexion of approximately 115 degrees (normal 140) and extension of 0 degrees (normal 0), with painful motion.  The examiner indicated the CI was unable to perform any functional activities due to pain in the knees and hips.  

The 11 June 2005 commander’s statement indicated the CI had multiple profiles between August 2004 and March 2005 with no running and/or walking due to knee and/or hip pain and a permanent profile in May 2005 for fibromyalgia.  The 9 August 2005 permanent profile listed “knee pain, bilateral patellofemoral syndrome,” “bilateral hip pain with osteoarthritis” and “myofascial pain, knees and hips.”

At the 24 August 2005 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported constant burning, stiffness and popping of the knees.  She denied incapacitation.  Physical examination showed a “stiff, painful, antalgic” gait, but she was not using an assistive device for ambulation.  There was tenderness of the patellar tendons bilaterally.  Bilateral knee ROM was 140 degrees of flexion and 0 degrees of extension, with painful motion.  There was no additional limitation of motion after repetition of motion.  There was no evidence of instability or meniscal pathology of either knee, and bilateral knee X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the left and right knee conditions 10% each, coded 5260 (limitation of flexion), citing painful flexion, based on the C&P examination.  The panel first considered if the left and right knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Although at times the CI reported greater pain of the right knee than the left, both knees were implicated by the profile and commander’s statement and judged 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 performance, members agreed that each knee was reasonably justified as separately unfitting.  The panel then considered its rating recommendation for the knees at the time of separation noting the evidence pertinent to rating was identical for both knees.  

There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261) of either knee.  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for each knee coded 5299-5260.  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 for either knee under those codes.  There was no fracture, nonunion or malunion of either femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right knee condition and 10% for the left knee condition, both coded 5299-5260.  

Left and Right Hip Pain.  According to the STR and the MEB NARSUM, the CI’s left hip condition began in June 2004 after she fell in a foxhole.  A bone scan performed on 27 July 2004 was negative.  Radiographic studies showed “no significant pathology.”  The 7 June 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of bilateral hip pain.  The CI reported right greater than left hip pain.  She reported significant limitation due to the pain in her right hip.  Testing was negative for arthritis.  Physical examination showed an antalgic gait.  She reported a great deal of pain in her hips when moving during the examination.  There was “marked” tenderness with “light palpation” bilaterally.  The examiner commented that the CI “seemed to have hypersensitive skin over her hip areas.”  Bilateral hip ROM was 110 degrees flexion (normal 125), abduction was 40 degrees (normal 45) and external rotation was 30 degrees on the right and 40 degrees on the left (normal 45) with pain with all motions and movements.  Flexion, abduction, external rotation and extension of the hip caused pain referred to the inguinal area bilaterally (Fabere sign).  The examiner indicated the CI was unable to perform any functional activities due to pain in the knees and hips.  

At the 24 August 2005 C&P evaluation the CI reported stiffness and popping of the hips.  She denied incapacitation.  Physical examination showed tenderness of both hips.  Right hip ROM, in degrees, was flexion of 120, abduction of 40, adduction of 20 (normal 25) and external rotation of 25 (normal 60), with pain with all movements.  Left hip ROM was flexion of 110, abduction of 30, adduction of 20 and external rotation of 45, with pain with all movements.  There was no additional limitation of motion after repetition.  Hip X-rays showed degenerative changes bilaterally.  

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the left and right hip conditions 10% each, coded 5003 (degenerative arthritis), citing painful or limited motion of a major joint based on the C&P examination.  The panel first considered if the right and left hip conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Although at times the CI reported greater pain of the right hip than the left, both hips were implicated by the profile and commander’s statement and judged 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 hip over the other.  Since undue speculation would be required to conclude that impairment from either hip would not have unacceptably interfered with performance, members agreed that each knee was reasonably justified as separately unfitting.  The panel then considered its rating recommendation for the hips at the time of separation noting the evidence pertinent to rating was similar for both hips.  

There was no limitation of motion of either hip which supported a rating under the diagnostic codes for limitation of thigh flexion, thigh extension or thigh impairment (5251, 5252 and 5253).  However, there was evidence of arthritis with painful, limited motion for a 10% rating coded 5099-5003.  There was no evidence of right or left hip ankyloses, flail hip joint, or femur impairment (5250, 5254, 5255) for a rating under the respective codes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right hip condition and 10% for the left hip condition, both coded 5099-5003.  

BOARD FINDINGS:  In the matter of the bilateral knee and hip condition, the panel recommends disability ratings as follows: an unfitting left knee condition and an unfitting right knee condition, each rated 10%, both coded 5299-5260 and an unfitting left hip and an unfitting right hip, each rated 10%, both coded 5099-5003, all IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Knee Pain	5299-5260	10%	
Right Knee Pain	5299-5260	10%	
Left Hip Pain	5099-5003	10%	
Right Hip Pain	5099-5003	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170419, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180006665, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure