RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200854 SEPARATION DATE: 20030102 BOARD DATE: 20130213 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve component First Lieutenant / O-1 (91A 5P/General Ordnance Officer), medically separated for chronic bilateral knee, ankle and hip pain (rated as a single unfitting condition). While an enlisted soldier in an earlier period of service, the CI had a parachute accident in 1989. He incurred bilateral femur, tibial/fibula and feet fractures, with an open right tibia fracture. He had hardware placed in his ankles and tibia/fibula bilaterally, but never underwent a Medical Evaluation Board (MEB). He stayed in his original Military Occupational Specialty (MOS), served in Operation Desert Storm and separated in 1992. In order to subsequently qualify for a Reserve Officer Training Corps scholarship, the CI had his surgical hardware removed in about 1995. He eventually re-entered active duty as an officer in 2000. During training, he injured his knees and then had persistent pain. He was issued a permanent L3 profile for patellofemoral pain syndrome (PFPS) and was referred to a Military Medical Review Board shortly after 11 September 2001. He was retained. In early 2002, due to continued problems with bilateral knee pain and to a lesser extent ankle and hip pain, and the CI’s continued inability to do his MOS, he was referred to a MEB. The MEB identified and forwarded bilateral chronic knee, ankle, and hip pain with a prior history of service-related multiple bony fractures with hardware placement and subsequent removal as being medically unacceptable. The Physical Evaluation Board (PEB) adjudicated chronic bilateral knee, ankle and hip pain (as a single unfitting condition), rated 10%, with cited application of the US Army Physical Disability Agency (USAPDA) pain policy and the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “Increased pain due to Arthesitis (sic) from injuries. Increased mental pain / Depression from PTSD.” SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for unfitting conditions will be reviewed in all cases. The chronic bilateral knee, ankle and hip pain conditions as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview and are addressed below. The other requested condition posttraumatic stress disorder (PTSD) and any other conditions service-connected by the Department of Veterans Affairs at the time of separation are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20021101 VA (8 Mos. Post-Separation) – All Effective Date 20030103 Condition Code Rating Condition Code Rating Exam Chronic B/L Knee, Ankle & Hip Pain 5099-5003 10% Residuals Rt Tibia/Fibula Fracture 5014-8523 10% 20030902 Lt Patellofemoral Pain Syndrome 5099-5014 0% 20030902 Residuals Lt Hip Injury 5099-5014 0% 20030902 Residuals Rt Hip Injury 5099-5014 0% 20030902 Residuals Fracture Rt Ankle 5099-5014 0% 20030902 Residuals Fracture Lt Medial Malleolus 5299-5271 0% 20030902 Arthritis B/L hips, knees, & ankles 5099-5010 NSC* 20030902 .No Additional MEB/PEB Entries. PTSD 9422 10% 20030902 0% X 9*/ Not Service-Connected x 10* (*Includes Above) 20030902 Combined: 10% Combined: 20% ANALYSIS SUMMARY: The PEB combined chronic bilateral knee, hip, and ankle pain as the single unfitting and solely rated condition, coded analogously to 5003. Although this approach complies with AR 635.40 (B.24 f.), the Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting and that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting. Thus the Board exercises the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. Chronic Bilateral Knee Pain Condition. The narrative summary (NARSUM) notes a parachuting accident in 1989 which resulted in bilateral femur, tibia/fibula, and foot fractures with clavicle, ribs, and spinal compression fractures. The CI sustained a fall in 2000 resulting in recurrence of his bilateral knee pain. The pain persisted despite conservative management and the CI was diagnosed with bilateral PFPS. The CI reported daily 6/10 pain in both knees reaching 10/10 at times. Magnetic resonance imaging (MRI) of his knees was negative. The NARSUM examination (6 months prior to separation) noted pain at the end of flexion and tenderness to palpation (TTP) along the lateral joint line. Stability and meniscal maneuvers were negative with 4/5 strength bilaterally to extension and flexion of the knees. At the VA Compensation and Pension (C&P) exam, 8 months after separation, the CI reported joint, back, and neck pain. The exam was silent regarding painful or limited motion. At a second C&P examination on the same day, a normal gait was noted. The range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. Knee ROM (Measurements in Degrees) NARSUM ~ 6 Mo. Pre-Sep PT ~ 3 Mo. Pre-Sep Left Right Left Right Flexion (140 Normal) “FROM” “FROM” 123 103 Extension (0 Normal) 0 0 Comment + painful motion, tenderness, antalgic gait §4.71a Rating 10% 10% 0% 0% The Board first considered if the knee pain conditions, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above. The STR documented multiple evaluations and treatment for bilateral knee pain. The CI had a permanent L3 profile for bilateral knee pain with restrictions including but not limited to no running, repetitive squatting/stooping/jumping; and no running or bicycling for his physical fitness testing. The commander’s statement referenced the CI’s multiple injuries and P3 lower extremity profile. All members agreed that right and left knee pain, as isolated conditions, would have rendered the CI incapable of continued service within his MOS and accordingly merit separate ratings. The Board then considered its rating recommendation for the unfitting bilateral knee pain condition at the time of separation. The evidence of record provided an accurate picture of the pathology and residual disability associated with the CI’s bilateral knee pain condition to rate within VASRD standards. The PEB’s record of proceedings reflected the application of the USAPDA pain policy for rating. There is sufficient evidence of painful motion (§4.59) and functional loss (§4.40) for each knee to justify individual 10% ratings IAW VASRD 4.71a criteria. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a rating of 10% for the left knee condition and 10% for the right knee condition, coded 5099-5003. Ankle and Hip Pain Conditions. The NARSUM noted that the hip and ankle pain were less severe than the bilateral knee pain. The hip and ankle pain baseline was documented at 2-3/10 reaching 10/10 with periodic exertion. The NARSUM was silent regarding hip and ankle examination findings. X-ray evaluations of the hips were “unremarkable” and the ankles revealed “no significant secondary degenerative changes.” At the C&P exam the CI reported joint, back and neck pain. X-ray evaluation documented normal bilateral hip, knee, and femur radiographs and an old healed fracture of the right ankle. At the C&P exam dated a normal gait was noted. As previously elaborated, the Board must first consider whether the bilateral hip and ankle conditions remain separately unfitting, having de-coupled them from a combined PEB adjudication. In analyzing the intrinsic impairment for appropriately coding and rating the hip and ankle conditions, the Board is left with a questionable basis for arguing that they were independently unfitting. Although the MEB forwarded the bilateral ankle and hip pain as medically unacceptable, the Board considered that while there were multiple evaluations and treatment for the bilateral knee pain, the STR was silent to repetitive complaints and treatment for hip and ankle pain. The NARSUM stated that the hip and ankle pain were to a lesser extent than the knee pain and solely addressed pathology and residual disability associated with the bilateral knee pain. The initial L3 temporary and permanent profiles were for bilateral knee pain. The hip and ankle pain conditions were added to the permanent profile upon initiation of the MEB. The Board also considered that the hip radiographs demonstrated no evidence of degenerative arthritis. After due deliberation, the Board agreed that evidence does not support a conclusion that the hips and ankles, as isolated conditions, would have rendered the CI incapable of continued service within his MOS and accordingly cannot recommend separate ratings for them. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on the USAPDA pain policy for rating the bilateral knee, hip and ankle pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral knee pain condition, the Board unanimously recommends that each joint be separately adjudicated as follows: an unfitting right knee pain condition coded 5099-50003 and rated 10%, and an unfitting left knee pain condition, coded 5099-5003 and rated 10%, both IAW VASRD §4.71a. In the matter of the bilateral hip and ankle pain conditions, as combined in the PEB adjudication, the Board unanimously agrees that they could not be satisfactorily established as independently unfitting and therefore are not ratable for service disability. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Right Knee Pain 5099-5003 10% Left Knee Pain 5099-5003 10% Bilateral Hip Pain Not Unfitting Bilateral Ankle Pain Not Unfitting COMBINED (w/ BLF) 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120605, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxx, AR20130004606 (PD201200854) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)