RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-04065
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Infantryman, medically separated for “chronic bilateral knee pain” with a disability rating of 0%. 

CI CONTENTION:  The knee conditions continue to worsen and negatively impact daily activities.  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 - 20060825	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

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%.  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.  

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s bilateral knee condition began in July 2004 without specific injury or trauma.  The CI reported knee pain, right greater than left, which had a gradual onset.  Radiographic studies were normal and he was diagnosed with bilateral retropatellar pain syndrome (RPPS) and a P3 profile was issued.  The CI desired to remain in the military and his profile was downgraded to P2.  He was placed on administrative duties for 20 months, but his bilateral knee pain did not resolve.  Bilateral knee MRIs on 15 June 2006 were normal.  

The 1 June 2006 permanent profile, 8 months prior to separation, listed RPPS, bilateral.  The 20 June 2006 commander’s statement, 7 months prior to separation, implicated bilateral RPPS as impairing the CI’s successful performance of duties.  During the 5 July 2006 MEB examination (recorded on DD Forms 2807-1 and 2808) and the NARSUM (completed by the same examiner, the same day), 7 months prior to separation, the examiner recorded right greater than left knee pain, graded 2-3/10, aggravated by activity.  Each time the CI tried to return to training, he experienced severe pain.  Physical examination showed no effusion or crepitus and the CI had normal bilateral flexion and extension.  There was no evidence of instability.  Although there was pain with squatting and kneeling, patellar grind was negative (no pain with patella compression).  
The 11 July 2006 physical therapy ROM examination, 6 months prior to separation, showed, after repetition, bilateral flexion of 138 degrees (normal 140) and normal extension (0 degrees).  The examiner noted pain at end-range with passive knee flexion, bilaterally.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB rated the bilateral knee condition 0%, coded 5099-5003 (analogous to degenerative arthritis), citing full bilateral ROM without tenderness, patellar grind or instability.  The panel first considered if the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Although the MEB indicated the right knee pain was worse than the left, both knees were profiled, both were implicated in the commander’s statement and both were noted to fail retention standards.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that each knee was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting left and right knee conditions at the time of separation.

There was no limitation of flexion or extension of either knee that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  However, the panel majority found 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 (analogous to limitation of leg flexion).  The panel considered other VASRD knee codes but all were less applicable and not advantageous for rating of either knee.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% each for the right and left knee conditions, coded 5299-5260. 

BOARD FINDINGS:  In the matter of the chronic bilateral knee pain condition, the panel majority recommends a disability rating as follows: an unfitting right knee condition and an unfitting left knee condition, each rated 10%, both coded 5299-5260 of IAW VASRD §4.71a.  The single voter for dissent recommends no change and 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 Right Knee Pain	5299-5260	10%	
Chronic Left Knee Pain	5299-5260	10%	
COMBINED	20%	

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Dear XXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified to 20% 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 and to the counsel you listed on your application; [name and address].