RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201665
BRANCH OF SERVICE:  Army	BOARD DATE:  20130508
SEPARATION DATE:  20030530

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88M/Motor Transport Operator) medically separated for chronic bilateral knee pain.  The bilateral knee pain began in 1999.  The CI reportedly had a left knee arthroscopy in 1995 before entering the Army and injured his right knee while riding a dirt bike.  He was treated conservatively, but his bilateral knee pain could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Chronic bilateral knee pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated chronic bilateral knee pain as unfitting, rated 0%, referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated with a 0% disability rating.

CI CONTENTION:  “I recieved no disability rating and think I should be medicaly retired or recieve a percentage.  Because I recieved my injury’s while on duty and was in perfect condition before I went into the ARMY.  Now I am working on disability through the VA.  I already have been given 20% by the VA.  And they are working on more. ”

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 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, operating under a different set of laws.  The rating for the unfitting bilateral knee condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The 20% combined VA rating for the right shoulder and tinnitus conditions referred to on the application were not identified by the MEB/PEB, and thus are not within the DoDI 6040.44 defined purview of the Board.  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 20030424	VA - (5+ Years Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	S/P Meniscal Tears of the Right and Left Knees	5257	NSC	20081201	
No Additional MEB/PEB Entries	Other x 9	20081201	
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20090107 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  It is noted for the record that the Board recognizes the significant interval (66 months) between the date of separation and the VA evaluation.  DoDI 6040.44, under which the Board operates, specifies a 12-month interval for special consideration to VA findings.  This does not mean that the VA information was disregarded, as it was a valuable source for clinical information and opinions relevant to the Board’s evaluation.  In matters germane to the severity and disability at the time of separation, however, the information in the service record was assigned proportionately more probative value as a basis for the Board’s rating recommendations.

Chronic Bilateral Knee Pain.  The service treatment record (STR) indicates complaints of right and left knee pain beginning in November 1999 related to activities such as playing basketball, ruck marching, and running.  X-rays of the bilateral knees (October 2002) were normal; and a magnetic resonance imaging (MRI) of the right knee (November 2002) was normal.  The goniometric 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
(Degrees)	Ortho 6 Mo. Pre-Sep	MEB ~ 1.5 Mo. Pre-Sep	
	
Left	
Right	Left	Right	
Flexion (140 Normal)	140	140	120	125	
Extension (0 Normal)	0	0	0	0	
Comment	Painful motion, mild crepitus	Painful motion, mild crepitus	Painful motion	Painful motion	
§4.71a Rating	0% or 10%	0% or 10%	10% (PEB 0%)	10% (PEB 0%)	

An orthopedic surgery evaluation on 3 December 2002 (6 months prior to separation) described the CI’s complaint of bilateral retropatellar knee pain, right greater than the left, that was worse with running, prolonged sitting, and climbing stairs.  Symptoms of locking, giving way, or instability were denied.  Physical examination showed pain with patellar compression and no effusion.  The ligament tests for instability were negative bilaterally.  At a physical therapy evaluation for right knee pain only on 26 December 2002 (5 months prior to separation) the CI could not recall a history of injury.  Right knee pain was noted to occur after two-mile runs, climbing stairs and driving.  He reported occasional locking and giving way of the right knee, and rated the pain as 5-6 out of 10 (1-10 scale).  Examination revealed a normal gait and normal, but unmeasured, active ROM.  Right retropatellar tenderness and pain with patellar compression was present.  Swelling, patellar grind and ligament instability were absent.  The narrative summary (NARSUM) on 11 April 2003 (a month prior to separation) indicated that the CI underwent left knee arthroscopy at age 17.  The CI reported complaints of knee swelling when standing too long.  Pain occurred with climbing stairs, use of a clutch, long distance driving and lower body exercise.  He could not run or jump.  He reported that the knees buckled about one time per month while running.  Tylenol was used for pain.  The CI stated he had a previous MRI showing a meniscal tear while in the service, but the examiner could find no clinical record or MRI report confirming that history.  The physical exam noted a “good” gait with no limp.  Pain occurred at extremes of flexion in both knees.  The examiner concluded, “His prognosis is fair in an environment which does not require running, jumping, heavy lifting, or strenuous physical activity involving the knees and walking.”

The Board directs attention to its rating recommendation based on the above evidence.  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 first 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 must exercise 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.  The Board agreed that, in this case, it would be overly speculative to conclude that either knee was not unfitting.  The PEB assigned a 0% rating under an analogous 5003 code (degenerative arthritis), applying the USAPDA pain policy.  The CI submitted a claim to the VA for status post bilateral meniscal tears; based on an examination performed over 5 years after separation, the VA did not service-connect that condition because it was not related to the retropatellar pain syndrome condition for which the CI was medically separated.  Board members noted that there was no limitation of motion to justify a compensable rating under the 5260 (limitation of flexion) or 5261 (limitation of extension) codes; and no evidence of instability to warrant a minimum rating under the 5257 code.  The Board debated whether the CI’s symptoms were severe enough to warrant application of §4.40 (functional loss) or §4.59 (painful motion).  Although pain at extremes of motion, mild crepitus and patellar tenderness were documented, the Board debated whether a normal gait and the ability to run two miles (as reported by the physical therapist) depicted a sufficiently severe objective functional impairment to warrant application of §4.40 or §4.59.  The Board also carefully considered the option of rating both lower extremities together.  The Board majority agreed that a bilateral rating of 10%, coded 5099-5003, is a good analogy to both the pathology and disability.  Since rating analogously defaults to 5003 rating criteria without regard to confirmed radiographic findings, a 10% rating for two major joints is supported.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the bilateral lower extremity condition, coded 5099-5003.

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 bilateral knee pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic bilateral knee pain condition, the Board by a vote of 2:1 recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  The single voter for dissent (who recommended no change in the PEB adjudication) did not submit a minority opinion.  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 Bilateral Knee Pain	5099-5003	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120919, 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 AR20130011448 (PD201201665)

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