RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200930 SEPARATION DATE: 20030801 BOARD DATE: 20130328 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (71L/Postal Operator) medically separated for chronic bilateral knee pain. He was treated, but did not improve adequately to fully perform his military duties or meet physical fitness standards. He was issued a permanent L3 profile and underwent a Medical Evaluation Board (MEB). The MEB found his knee condition medically unacceptable IAW AR 40-501, and referred him to a Physical Evaluation Board (PEB). Three other conditions (hypertension, gastro-esophageal reflux disease [GERD], and ganglion cyst right wrist) were listed on DA Form 3947 as “not disqualifying.” The Physical Evaluation Board (PEB) found the bilateral knee pain unfitting, and rated it 10%, IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD). The other three conditions were all adjudicated as “not disqualifying.” The CI made no appeals, and was medically separated with 10% disability. CI’s CONTENTION: The CI writes: “Sleep Apnea, Knees, Wrist, Hearing” [sic] SCOPE OF REVIEW: The Board’s scope of review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2)., is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The unfitting knee condition (chronic bilateral knee pain secondary to osteoarthritis) and the ganglion cyst right wrist meet the criteria prescribed in DoDI 6040.44, and are accordingly addressed below. Sleep apnea and hearing are not within the Board’s purview. Any condition outside the Board’s defined scope of review may be eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Army PEB – dated 20030507 VA (4 mos. Post-Sep) – All Effective 20030802 Condition Code Rating Condition Code Rating Exam Bilateral Knee Pain 5010 10% Osteoarthritis Left Knee 5260-5003 10% 20031222 Osteoarthritis Right Knee 5260-5003 10% 20031222 Hypertension Not Unfitting Hypertension 7101 10% 20031222 GERD Not Unfitting GERD 7346 10% 20031222 Cyst, Right Wrist Not Unfitting Cyst, Right Wrist 8515-5215 NSC 20031222 .No Additional MEB/PEB Entries. Tinnitus 6260 10% 20031222 0% x 1 / Not Service Connected x 1 20031222 Combined: 10% Combined: 40% ANALYSIS SUMMARY: Bilateral Knee Pain. The CI has a long history of knee pain. In May 1991 while deployed to Saudi Arabia, he injured his right knee when he fell into a tank trail. He had arthroscopic surgery on the right knee in 1996. In addition, he has had chronic problems with his left knee as well. Many treatment options were tried, but in spite of treatment his knee pain persisted. X-rays in August 2002 showed evidence of degenerative joint disease (DJD) of both knees. He was issued a permanent L3 profile in February 2003, and an MEB was initiated. His MEB clinical evaluation was on 4 March 2003. Examination of the knees revealed tenderness to palpation (TTP), and positive retropatellar grind. The McMurray’s test was negative, and there was no clinical evidence of joint laxity or edema. On 12 March 2003, range-of-motion (ROM) testing was done by physical therapy (PT) and is summarized in the chart below. In December 2003, the CI had a VA Compensation and Pension (C&P) exam. There was crepitus of the right knee, but both knees were negative for any redness, swelling, or instability. Knee ROM was stated as “full.” There was pain on extremes of motion. The CI’s knee ROM is summarized below. Knee ROM PT – 4½ mos. Pre-Sep (20030312) C&P – 4½ mos. Post-Sep (20031222) Left Right Left Right Flexion (140° is normal) 130° 125° “Full” “Full” Extension (0° is normal) 0° 0° “Full” “Full” Comment Pain (?) Pain Pain Pain §4.71a Rating 10%* 10%* 10%* *10% based on VASRD §4.40 (Functional loss), §4.45 (The joints), and §4.59 (Painful motion) The Board carefully reviewed all of the evidentiary information available. The PEB combined the two chronic knee pain problems into a single unfitting condition: “Chronic bilateral knee pain secondary to osteoarthritis.” The condition was coded 5010 and rated at 10%. The April 2004 VA Rating Decision unbundled the two knee conditions, and assigned a rating of 10% to each joint, resulting in a combined rating of 20%. The Board evaluated whether or not it was appropriate for the two knee problems to be “bundled” together. The Board must determine if the PEB’s approach of combining the conditions under a single rating was justified in lieu of separate ratings. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the VASRD. If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each ‘unbundled’ condition was separately unfitting. After due deliberation, the Board determined by majority decision that the evidence supports a conclusion that either of the chronic knee conditions, separately, would have rendered the CI unable to perform his required military duties. Accordingly, the Board recommends a separate disability rating for each of the two knees. Using data in the treatment record, both knees were essentially non-compensable based on VASRD §4.71a codes for loss of knee motion (5260 and 5261). However; IAW VASRD §4.40, §4.45, and §4.59; a 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint. The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the knees. The other VASRD codes that were considered did not result in a rating higher than 10%, since the treatment record did not show evidence of ankylosis, malunion, or any other significantly disabling joint abnormality which would justify a rating higher than 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends by majority decision (2:1 vote) a rating of 10% for the chronic right knee pain, IAW VASRD §4.40, §4.45, §4.59, and §4.71a. In like manner, the Board recommends by majority decision (2:1 vote) a rating of 10% for the chronic left knee pain, IAW VASRD §4.40, §4.45, §4.59, and §4.71a. Right Wrist Condition. Ganglion cyst of the right wrist was adjudicated by the Army PEB as not unfitting. The Board’s main charge is to assess the fairness of the PEB’s fitness determination. The Board’s threshold for countering Service fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The right wrist condition was not profiled, implicated in the commander’s statement, or judged to fail retention standards. This condition was reviewed by the action officer and considered by the Board. There was no evidence in the record that this condition significantly interfered with duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended wrist condition. 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the chronic right knee pain, the Board recommends by majority decision (2:1 vote) a disability rating of 10%, coded 5010-5260, IAW VASRD §4.40, §4.45, §4.59 and §4.71a. The single voter for dissent did not elect to submit a minority opinion. In the matter of the chronic left knee pain, the Board recommends by majority decision (2:1 vote) a disability rating of 10%, coded 5003-5260 IAW VASRD §4.40, §4.45, §4.59 and §4.71a. The single voter for dissent did not elect to submit a minority opinion. In the matter of the right wrist condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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 Chronic right knee pain 5010-5260 10% Chronic left knee pain 5003-5260 10% COMBINED (with BLF) 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120603, 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 / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxx, AR20130008772 (PD201200930) 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 xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)