RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201219
BRANCH OF SERVICE:  Army	BOARD DATE:  20130730
SEPARATION DATE:  20030610

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (13F/Artillery Forward Observer) medically separated for a bilateral knee condition.  He injured his right knee early in basic training, suffered persistent pain and developed bilateral knee pain over time and was subsequently diagnosed with bilateral retropatellar pain syndrome (RPPS).  The condition(s) could not be adequately rehabilitated to permit completion of Advanced Individual Training (AIT), so he was issued a permanent profile and referred for a Medical Evaluation Board (MEB).  Bilateral RPPS (as the sole condition) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB adjudicated the single bilateral condition as unfitting, rated 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Constant pain which VA Doctors cannot tell why and a lot of discomfort and sleep disorder.”

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 sleep disorder was not identified by the PEB and is therefore not within the DoDI 6040.44 defined purview of the Board.  That, and any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him but must emphasize that 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, which operates under a different set of laws. 

RATING COMPARISON:

Service PEB – Dated 20030428	VA - (4 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
RPPS, Bilateral Knees 	5099-5003	10%	RPPS, Left Knee 	5262	10%	20030305	
			RPPS, Right Knee	5262	10%		
No Additional MEB/PEB Entries	Other x 3		
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030719.

ANALYSIS SUMMARY:  The Board notes that the pre-separation VA Compensation and Pension (C&P) evaluation was not available in evidence before the Board and could not be located after appropriate inquiries.  Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case.  Members agreed that the available evidence was sufficiently probative, specifically the description of C&P findings available in the VARD (as referenced below); and, that the missing evidence would not materially affect the Board’s final recommendation.

Bilateral Knee Condition.  The CI twisted his right knee in basic training in October 2002.  He was evaluated by orthopedics, diagnosed with RPPS, and treated conservatively for persistent right knee pain throughout the completion of basic training.  An additional complaint of left knee pain (without new injury) surfaced in January 2003 during AIT.  Bilateral knee X-rays were normal.  Most record entries focused on the right knee complaint with a paucity of later notes referring to a diagnosis of a bilateral condition.  Conversely, and likely erroneously, the profiles specified only “chronic left knee pain” but the commander’s corresponding statement referred only to “right knee pain.”  Clinical notes consistently documented knee range-of-motion (ROM) as full, and no entries specified painful motion.  There were occasional findings of right knee crepitus, grinding, and guarding, but no evidence of ligamentous instability, signs of cartilage injury, or effusion.  The narrative summary rated the pain as slight and frequent; it also noted limitations with running, jumping, and prolonged standing.  The physical examination noted bilateral patellar tenderness with grinding and crepitus.  There was no surrounding atrophy, edema, or effusion.  Gait, strength, and stability testing was normal.  Painful motion was not documented.  As noted above, the VA source exam is unavailable.  The post-separation VARD cited “decreased” ROM of the right knee but not for the left knee, further stating that both knees were “affected by pain upon testing.”  It may be reasonably assumed from the VARD language and determinations that there was no compensable ROM impairment or ratable instability captured from the C&P examination.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB combined the right and left RPPS diagnoses under a single disability rating, coded analogously to 5003.  Although the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended.  The Board thus considered whether each knee, having been de-coupled from the combined PEB adjudication, could be reasonably justified as separately unfitting.  The evidence makes clear that the right knee was associated with more disability than the left one in this case.  The disparity was such that the question was raised of whether the left knee was reasonably justified as separately unfitting.  Although it is speculative to conclude that the disability confined to the left knee would have rendered the CI incapable of performing within his MOS, member consensus was that it was reasonable to surmise that it was the overall effect of both knees which rendered him unfit.  Further member consensus was that §4.71a criteria for separate ratings were not met.  The preponderance of evidence indicates minimally impaired ROM without satisfactory demonstration of painful motion.  The bilateral diagnosis therefore supports a single 5003 based rating for “2 or more major joints,” as conferred by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the bilateral knee 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the knee condition was operant in this case; the knee condition was adjudicated independent of that policy by this Board.  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board majority (by a vote of 2:1) recommends no change in the PEB adjudication.  The single voter for dissent recommended a 10% rating for the right knee, but did not consider the left knee as separately unfitting; and did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Retropatellar Pain Syndrome, Bilateral Knees	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120626, 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 AR20130018110 (PD201201219)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA