Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201117
BRANCH OF SERVICE:  Army	BOARD DATE:  20130813
Date of SEPARATION:  20010912

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (71L20/Administrative Specialist) medically separated for a chronic bilateral knee condition.  She originally injured her right knee while running the Army Physical Fitness Test in December 1990 and underwent arthroscopic surgery of that knee in June of 1991 with a final diagnosis of osteochondritis dessicans.  Her left knee pain also began in 1990 and she was diagnosed with patellofemoral syndrome bilaterally.  The bilateral knee condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The bilateral knee condition, characterized as “osteochondritis dessicans right knee” and “retropatelllar pain syndrome,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded six other conditions (sinusitis, multiple allergies, gravida 2, vaginitis, achilles tendinitis and mild depression) for PEB adjudication.  The PEB adjudicated the chronic bilateral knee condition as unfitting, rated 0%.  The remaining conditions were determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Both knees where damaged while in the military and has worsened over the years.  Im currently at 40% disabled by VA due to my condition and currently under consideration for upgrade by VA.  I also had lower back injuries that did not get rated by the board and are rated by the VA.”

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 rating for the unfitting bilateral knee condition is addressed below.  The requested low back condition was not identified by the PEB, and thus is not within the DoDI 6040.44 defined purview of the Board.  The Board acknowledges the impairment with which the CI’s service connected condition continues to burden her, but notes the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations and DoDI 6040.44 prescribes a 12-month interval for special consideration of post-separation evidence.  Post separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20010605 | VA - (7 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Bilateral Knee Pain | 5299-5003 | 0% | Osteochondritis Dessicans, Rt Knee | 5260 | 10% | 20020417
| | | Osteochondritis Dessicans, Lt Knee | 5260 | 0%* | 20020417
Sinusitis | Not Unfitting | Intermittent Sinusitis | 6514 | 10% | 20020417
Multiple Allergies | Not Unfitting | Chronic Allergic Rhinitis | 6522 | 0% | 20020417
Gravida 2 | Not Unfitting | No Corresponding VA Entry
Vaginitis | Not Unfitting | No Corresponding VA Entry
Achilles Tendinitis | Not Unfitting | No Corresponding VA Entry
Mild Depression | Not Unfitting | No Corresponding VA Entry
No Additional MEB/PEB Entries | Other x 0 | 20020417
Combined:  0% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20020910 (most proximate to date of separation [DOS]).
* The rating for the Lt knee increased to 10% effective 20031015.

ANALYSIS SUMMARY:  

Bilateral Knee Condition.  The CI developed right knee pain after fitness testing in 1991.  Failing conservative treatment, she underwent arthroscopic surgery in June 1992, which revealed damage to the cartilage in the knee joint ("osteochondritis dessicans").  She continued having pain in the right knee and subsequently developed pain in the left knee as well ("patellofemoral syndrome").  X-rays of both bilateral knees in October 1992 were normal.  No further surgery was recommended and the CI was placed on permanent L2 profile for no running.  Her knee pain continued to worsen despite conservative treatment including: anti-inflammatory medications, physical therapy, and activity restrictions; she was then referred to the MEB.  The commander's statement, dated 2 January 2000, references only the right knee as the reason for the CI's inability to perform military duties.  On 5 December 2000, the MEB bilateral knee exam noted no effusions, full active range-of-motion (ROM), good muscle strength and no signs of knee instability.  The MEB narrative summary (NARSUM) dated 23 April 2001 notes the CI complained of pain with walking and climbing stairs.  At the VA Compensation and Pension (C&P) exam, 7 months after separation, the CI reported she had knee pain with climbing stairs and prolonged standing.  On exam she had a normal gait, walked on toes and heels, and was able to hop on either foot.  She could fully squat but the motion caused discomfort in her knees.  ROM was right knee 134 degrees flexion (normal 140 degrees) and 0 degrees extension (normal 0 degrees); the left knee was 139 degrees flexion and 0 degrees extension.  There were no signs of knee instability.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB combined the right and left knee conditions as a single unfitting condition coded analogously to 5003 and rated 0%.  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 or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” (the combining of two or more major joints) is permissible under the Veterans Affairs Schedule for Rating Disabilities (VASRD) 5003 rating requirements; this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’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 Board 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 Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.
The medical evidence and commander's statement make clear that the right knee was associated with more disability than the left one in this case.  The disparity was such that the question is raised of whether the left knee was reasonably justified as separately unfitting.  It remains however that both knees were considered to fail retention standards; both were implicated by the NARSUM and orthopedic evaluations; and both were profiled.  Members agreed that it was reasonable to concede that each knee could be considered unfitting but questioned whether separate ratings could be justified IAW §4.71a.  There was no ROM impairment which would achieve a 10% rating.  Furthermore there is no evidence in support of application of VASRD §4.59 (painful motion) to achieve the minimum 10% rating.  The VA rating of 10% for the right knee was conferred by presuming that the nominal “limited motion” at the C&P exam implied "painful motion," which is insufficient rationale for the rating conferred.  There is no evidence of ligamentous laxity, frequent effusions, or other ratable findings which would support a 10% rating under any of the §4.71a knee joint codes, or separate rating for instability.  Members agreed that although provisions of VASRD §4.40 (functional loss) can be defended for achieving a 10% rating for the right knee; it is overly tenuous in support of a minimum rating for the left knee.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% coded 5299-5260 for the right knee and 0% coded 5299-5260 for the left knee.

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.  In the matter of the chronic right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5260 IAW VASRD §4.71a.  In the matter of the chronic left knee pain condition, the Board unanimously recommends a disability rating of 0%, coded 5299-5260 IAW VASRD §4.71a.  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 her prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Right Knee Pain | 5299-5260 | 10%
Chronic Left Knee Pain | 5299-5260 | 0%
COMBINED (w/ BLF) | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120602, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130018113 (PD201201117)

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 10% 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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201117