RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2017-05156
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060819

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Intelligence Analyst, medically separated for “chronic bilateral knee pain” with a disability rating of 10%.  

CI CONTENTION:  All of his conditions should rate higher than 10%, and he requested review of the knee condition, which has worsened, as well as additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board.  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20060705	VARD - 20070712	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	10%	Left Knee Arthralgia with Tendonitis	5024	0%	20060622	
			Right Knee Arthralgia with Tendonitis	5299-5024	0%	20060622	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the left and right knee conditions under a single service disability rating, coded analogously to 5003 (degenerative arthritis) and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  The 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 also 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 the PEB’s approach of 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 bilateral knee pain conditions are presented together with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s bilateral knee pain began in February 2005 after a gradual onset during training, with no associated traumatic injury.  The 27 February 2006 MEB NARSUM examination, 6 months prior to separation, noted complaints of bilateral knee popping and partial giving way at times.  Physical examination showed a normal stance and gait with the ability to heel and toe walk.  There was no knee joint swelling, warmth, or redness, and anterior/posterior drawer and Lachman’s testing was negative.  There was patellar tendon tenderness in both knees, and the left knee had pain limited motion.  

The physical therapy examination on 20 March 2006, 5 months prior to separation, noted CI complaints of pain limited left knee flexion.  The examiner documented range of motion (ROM) for the left knee from 0-122 degrees (normal 0-140), and for right knee from 0-125 degrees, after repetitive motion.  The examiner noted a normal gait with pain rated at 4/10 with walking, and increased to 7/10 with prolonged walking.  

At the 22 June 2006 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported bilateral knee weakness, stiffness, locking, and giving way.  Physical examination showed no swelling, deformity, tenderness, or ascertainable instability, and measured ROM was 0-140 degrees bilaterally, without significant pain, and no change with repetition.  All ligament stability and meniscal testing was documented as normal.  Knee X-rays performed on the same day were unremarkable, and the examiner noted “no significant disability” of either knee and “no diagnosis because there is no pathology to render a diagnosis.”  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB rated the bilateral knee pain condition 10%, analogously coded 5003, citing pain rated as slight and constant under the USAPDA pain policy.  The VA rated the left knee and right knee conditions 0% each, coded 5024 (tenosynovitis) and analogously coded 5299-5024 (tenosynovitis) respectively, based on the C&P examination, citing a noncompensable evaluation with no objective evidence of painful or limited motion of a major joint or group of minor joints.  

The panel first considered whether either of the knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The profile and commander’s statement revealed the CI was marginally capable of performing duties in garrison or in a deployed environment due to a serious medical condition regarding both of his knees.  The MEB NARSUM and STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either knee over the other, and physical and X-ray findings were essentially identical.  Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with military specialty performance, panel members agreed that each knee was reasonably justified as separately unfitting.  

The panel noted there was no compensable limitation of flexion or extension (5260 or 5261); no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258); no history of surgery to remove a meniscus (5259); and no fracture, non-union, or mal union of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  However, the MEB and physical therapy examinations proximate to separation showed evidence of left knee painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for the left knee.  Because there was no MEB, STR or VA evidence of painful motion with functional loss to support a 10% for the right knee, ideal rating would be 10% for an unfitting left knee and a 0% for an unfitting right knee; however, this would be no higher than the 10% awarded by the PEB and provide no benefit to the CI.  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.  

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  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.  

PD-2017-05156

ARXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXX 

Dear xxxxxxxxxxxxxxxxx

	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.

Sincerely,					      

Enclosure

				PD-2017-05156