RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05549
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20030915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Mobile Subscriber Equipment Transmission System Operator, medically separated for “bilateral knee pain 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 - 20030610	VARD - 20061031	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	Chronic Pain, Shin Splints, Bilateral Knees	5099-5020	0%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 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.

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s initial bilateral knee condition began in 1998 after a 5-mile ruck march, for which he was seen in sick call and given a temporary profile.  In December 2001, he presented for right knee pain due to running.  Knee X-rays in March and May 2002 were normal.  During a 21 March 2002 physical therapy visit, the CI reported right knee pain, and the provider noted a normal gait with “full” range of motion (ROM); painful motion was not addressed.  At an orthopedic clinic examination on 11 June 2002, the CI reported left greater than right knee pain and popping.  Physical examination showed bilateral mild quadriceps atrophy, crepitus, and positive patella grind.  A bone scan in August 2002 showed bilateral shin splints that were clinically insignificant, and no bilateral chondromalacia (kneecap undersurface deterioration).  At a 26 September 2002 orthopedic follow-up, 12 months prior to separation, there was no knee effusion, giving way, or popping of either knee.  Bilateral knee flexion was 135 degrees (normal 140) and extension was 0 degrees (normal); painful motion was not addressed.  

During the 5 February 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months before separation, the CI reported chronic knee pain, and the examiner documented “full” bilateral knee ROM; painful motion was not addressed.  The MEB NARSUM examination the same day noted complaints of continued bilateral knee pain.  Physical examination showed a mildly antalgic gait and bilateral patella tenderness.  Bilateral knee ROM was “full” with no mention of painful motion.  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 bundled the right and left knee conditions rated 10%, analogously coded 5099-5003 (arthritis, degenerative), citing degenerative arthritis of two or more joints without loss of motion or X-ray evidence other than the bone scan. The VA rated the bilateral knee condition 0%, also analogously coded 5099-5003, citing the STR.

Panel members first considered whether each knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  In this case, both knees failed retention standards, and were implicated by the MEB NARSUM and commander’s statement and profiled.  The panel concluded that there was not a preponderance of evidence to overcome the panel’s presumption that either the right knee or left knee condition was reasonably considered separately unfitting.

The panel then considered its rating recommendation, and agreed that there was no evidence of painful motion with functional loss to support a 10% rating for either knee (based on §4.59, §4.40 and §4.45).  Additionally, there was no limitation of flexion or extension (5260 or 5261), meniscal surgery (5259), evidence of dislocated meniscus or loss body causing frequent locking with recurrent effusions (5258), or fracture, nonunion or malunion of the femur or tibia causing a knee impairment (5255, 5262) to support a rating for either knee under those codes.  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 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.

AR20190006213, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	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.

	A copy of this decision has been provided to the counsel you listed on your application, Texas Veterans Commission, 701 Clay Avenue, Waco, TX 76799.