RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-05701
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20061010

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Satellite Communications Systems Operator, medically separated for “chronic bilateral knee pain” with a disability rating of 10%.

CI CONTENTION:  “I was never notified of MEB rating.”  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 - 20060623	VARD - 20070425	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	10%	Subluxation, Left Knee	5257	10%	20060825	
			Subluxation, Right Knee	5257	10%	20060825	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 80%	

ANALYSIS SUMMARY: The PEB combined the right and left knee conditions under a single disability rating, analogously 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.

Chronic Bilateral Knee Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s chronic bilateral knee condition began in February 1998 during basic training. In March 1999, an orthopedic surgeon diagnosed bilateral patellar subluxation and recommended surgical intervention, and in June 1999, another orthopedist diagnosed non- specific knee pain, right greater than left. The CI was able to resume running after conservative treatment, but between July 2000 and February 2003, he had multiple outpatient acute visits for knee pain and giving out. Knee X-rays and bone scans were negative, and in April 2004, he presented with knee pain, popping and giving out, but knee MRIs were normal. Another orthopedic surgeon diagnosed bilateral patellar subluxation and recommended a surgical procedure that differed from the one recommended in 1999. An additional orthopedic specialist recommended against surgery in 2005.

The 2 March 2006 MEB NARSUM examination, 7 months prior to separation, noted CI complaints of chronic bilateral knee pain, popping and giving out. Physical examination showed significantly limited but pain-free range of motion (ROM) of both knees. During the 17 March 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), the examiner noted left patellar tenderness with pain-limited flexion greater than 30 degrees and extension greater than 15 degrees; and right patellar tenderness with pain-limited flexion greater than 30 degrees and extension greater than 10 degrees (measured with goniometer). There were no lower extremity masses, and provocative testing was negative for ligamentous instability or meniscal pathology.

At the 25 August 2006 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported constant bilateral knee pain with daily flare-ups. He denied problems with bathing, but had difficulty putting on pants, heavy lifting, scrubbing the floor, walking one mile, standing for over an hour or going up or down stairs. Physical examination showed left knee flexion of 120 degrees and extension of 0 degrees, with pain, and right knee flexion of 100 degrees and 0 degrees extension, with pain. Repetitive motion did not exacerbate the pain. He had tenderness in the inferior and superior patella, bilaterally, but pain was more exquisite in the left inferior patella and medial aspect of the right knee. There was no redness, warmth or effusion, and bilateral provocative testing was negative for ligamentous instability or meniscal pathology.  Knee X-rays were unremarkable.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the bundled knee condition 10%, coded 5099-5003 as mentioned above. The VA rated subluxation of the left and right knee at 10% each, coded 5257 (knee impairment with recurrent subluxation or instability), based on the C&P examination, citing pain with ROM.

Panel members first considered whether the right and left knee conditions, having been de- coupled from the combined PEB adjudication, remained separately unfitting as established above. The profile, commander’s statement, NARSUM, MEB 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. 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, members agreed that each knee was reasonably justified as separately unfitting.

The panel placed more probative value on the C&P examination since it was most proximate to separation, and noted that while there was no limitation of flexion or extension (5260 or 5261) to support a compensable rating, there was evidence of bilateral painful motion with functional loss to support a 10% rating for each knee based on §4.59, §4.40 and §4.45. There was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions   (5258),

and no fracture, non-union or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262). Although the CI had a history of bilateral subluxation, the VA examination and X-rays did not demonstrate the presence of ligamentous instability, laxity or subluxation (5257). After due deliberation, considering all the evidence, the panel recommends separately unfitting determinations with a disability rating of 10% for the right knee condition and 10% for the left knee condition.

BOARD FINDINGS: In the matter of the bilateral knee condition, the panel recommends 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. 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	5099-5003	10%	
Chronic Left Knee Pain	5099-5003	10%	
	COMBINED	20%	

ARXXXXXXXXXXX

Dear XXXXXXXXXXXXXX:

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