RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04529
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20061115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard O2, Field Artillery Officer, medically separated for “chronic bilateral knee pain” with a disability rating of 10%.  

CI CONTENTION:  “Knees, ankles, hearing, PTSD, acid reflux were not properly evaluated.”  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 - 20060926	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5003	10%	No VA Examination Proximate to Separation in Evidence	
Post-Traumatic Stress Disorder	Not Unfitting		
Hearing Loss	Not Unfitting		
Calcaneal Spur Syndrome	Not Unfitting		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA 	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the left and right knee conditions under a single 10% disability rating, coded 5003 (arthritis, degenerative).  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 below.  

According to service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s bilateral knee condition began in April 2004 without specific injury while deployed.  There was no surgical indication.  The 9 March 2005 primary care clinic examination was significant for possible retropatellar crepitus and tenderness to palpation (TTP) at the junction of the patella and infrapatellar tendons and suggested early arthritis.  X-ray studies of the left knee showed no soft tissue swelling.  The patella was minimally subluxed to the outer lateral side, with small bony spur formations noted.  X-ray studies of the right knee showed no effusion with minimal narrowing of the joint space, suspicious for early arthritis.  At the 20 April 2005 PCC appointment, there was some swelling in both knees.  Pain was noted as sharp.  Both knees demonstrated full range of motion (ROM) and were within normal limits.  There was crepitus in both knees with more in right than left.  There was no instability and no edema.  

During the 25 August 2005 physical therapy (PT) appointment, following repetitive movement, right knee ROM was flexion of 90 degrees (normal 140) and extension of -3 degrees (normal 0) with painful motion.  Left knee ROM was flexion of 85 degrees and extension of -3 degrees with painful motion.  At the 8 September 2005 PT appointment, right knee flexion was 94 degrees and extension was -3 degrees.  Left knee flexion was 95 degrees and extension was -3 degrees with painful motion.  

At the 9 September 2005 orthopedic appointment, examination of both knees revealed no significant medial or lateral joint line tenderness and no locking, catching or other mechanical symptoms.  There was no instability on either side.  ROM was 122 degrees flexion on both sides with full extension.  There was no joint line and no patella facet tenderness.  MRI studies showed both knees to be very similar appearing with substance to the degenerative meniscus with no surface tear.  The knee ligaments were intact.  There were no significant bone bruises.  The examiner also mentioned arthroscopy was not indicated.  At the 5 October 2005 orthopedic appointment, the CI ambulated at a functional speed without an assistive device with a wide base of support and mild bilateral lurching.  Bilateral knee ROM was reported as approximately 100 degrees flexion with increased knee pain as the limiting factor.  During the 2 February 2006 PCC appointment, 9 months prior to separation, the examiner noted bilateral knee pain with crepitus and no instability.  The left knee had TTP distal to patella with no edema or warmth.  

The 1 August 2006 MEB NARSUM examination, 3 months prior to separation, noted complaints of pain in both knees.  Physical examination showed a reoccurring history of bilateral knee pain and referenced previous examinations by other physicians and an orthopedic surgeon.  No additional examination was conducted.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 10%, coded 5003 (degenerative arthritis), citing arthritis of two major joints.  In this case, both knees were considered to fail retention standards; both were implicated by the NARSUM and both were profiled.  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.  Panel members agreed the evidence reasonably justified that the functional limitations of the right and left knee conditions contributed to the CI’s inability to perform his military duties, and accordingly separate disability ratings are recommended.  There was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 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 knee.  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).  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, each coded 5099-5003.  

Contended PEB Condition:  Post traumatic Stress Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  On 12 April 2005, approximately 45 days into his medical hold, the CI brought forth his not unfitting mental health condition due to exposure to a traumatic event while deployed in Iraq.  The contended condition was first profiled during January 2006, when the CI received a designation of “S2” on his physical profile.  A physical profile designation of “2” under any or all factors indicates a medical condition or physical defect which may require some activity limitations.  He had several profiles prior to the January 2006 profile, but they were all for his bilateral knee/ankle pain.  The CI received his last permanent profile on 1 August 2006, which also denoted an S2 for psychiatric functional capacity.  The commander's statement did not implicate a mental health condition, other than to state "After the body recovery detail [the CI] did not mention any difficulties to me concerning a difficulty to sleep."  A subsequent commander's statement indicated the CI was working regular hours except for when he had medical appointments; he was following his schedule as expected and was actively working.  It also noted his interaction with peers, superiors and subordinates had been outstanding.  It noted, "His worksite supervisor and others have let me know that [the CI] has been very cooperative and pleasant to work with and that he is proficient at his duties."  The psychological NARSUM on August 2006 judged the mental health condition as medically retainable.  Ultimately, the contended condition was not nor judged to fail retention standards.  There was no performance-based evidence from the record that the condition 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 determination for the contended condition and so no additional disability rating is recommended.  

Contended PEB Conditions:  Hearing Loss and Calcaneal Spur Syndrome.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Neither of these conditions were profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that either of the 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 determination for either of these contended conditions and so no additional disability ratings are recommended.  

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 5099-5003 and rated 10%, and an unfitting left knee condition, coded 5099-5003 and rated 10%, both IAW VASRD §4.71a.  In the matter of the contended PTSD, hearing loss and calcaneal spur syndrome, the panel recommends no change from the PEB determinations as not unfitting.  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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Left Knee Pain	5099-5003	10%	
Chronic Right Knee Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170403, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180006654 XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

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