RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1201789
BRANCH OF SERVICE:  Army	BOARD DATE:  20140318
SEPARATION DATE:  20030617

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (77F/Petroleum Supply Specialist) medically separated for chronic bilateral knee pain.  The CI first reported left knee pain in basic training.  He was subsequently reclassified from 11B (Infantry) to his current Military Occupational Specialty (MOS).  The right knee became symptomatic in 2002.  Neither could be adequately rehabilitated to meet the physical requirements of his MOS nor satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “bilateral patella-femoral arthrosis; s/p bilateral lateral retinacular release” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded six other conditions (see rating chart below) for PEB adjudication as meeting retention standards.  The PEB adjudicated “chronic bilateral knee pain secondary to bilateral patella-femoral arthrosis, s/p bilateral lateral retinacular release” as unfitting, rated 0% with application of the VA Schedule for Rating Disabilities (VASRD).  The six remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “VA awarded service connected disabilities in excess of 100% and a combined disability rating of 70% due to disabilities received during service.”

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.  Based on the CI’s contention, nasal septal deviation, ingrown toenail, right ring finger, low back pain (LBP), tinnitus/hearing loss (HL) and right wrist pain conditions are 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 20030407	VA - (7 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bil Knee Pain
	5099-5003	0%	S/P Lat Release for PFPS, R Knee	5260	10%	20021206	
			S/P Lat Release for PFPS, L Knee	5260	10%	20021206	
Nasal Septal Deviation	Not Unfitting	S/P Open Septal Rhinoplasty… 	6502	0%	20021203	
R Great Toe, Ingrown Toenail, S/P Removal	Not Unfitting	Ingrown Toenail, Right Great Toe	5276	NSC	20021206	
R Ring Finger, Decreased ROM, S/P Laceration	Not Unfitting	Scar, S/P Z-plasty for Contracture Scar Volar Aspect, R Ring Finger	7805	0%	20021203	
Low Back Pain	Not Unfitting	Lumbar Strain	5292	10%	20021206	
HL, Tinnitus	Not Unfitting	Tinnitus (HL was NSC)	6260	10%	20021205	
Wrist Pain, Right	Not Unfitting	R Wrist Strain	5215	10%	20021206	
No Additional MEB/PEB Entries	Other x 3	20021203	
Combined:  0%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20030721 (most proximate to date of separation [DOS]).  NSC = not service connected

ANALYSIS SUMMARY:  The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6044.40; however, resides in evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.  The PEB combined the right and left knee conditions into one bundled unfitting condition coded 5099-5003 rated at 0%.  Although 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; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the right and left knee conditions are presented, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Chronic Bilateral Knee Pain.  The first record in evidence for the left knee was dated 9 February 1994 when he noted intermittent pain with long distance running and that he was initially seen while in basic training.  He was seen periodically over the next few years and noted that the symptoms were related to his activity level.  On 19 July 1995, he had normal X-rays of the left knee.  A bone scan a week later was normal for both knees.  He was seen in orthopedics a week later and thought to have retropatellar pain syndrome (RPPS), but a magnetic resonance imaging (MRI) was requested to exclude a medial meniscal tear.  It is not clear if this was accomplished or not, but the diagnosis was continued as RPPS.  He also became symptomatic in his right knee and both were issued temporary profiles.  He then was reclassified from airborne operations to the 77F MOS after a medical MOS Reclassification Board (MMRB).  The record then fell silent until 1998 when he was again seen for bilateral knee pain, left >> right.  He continued to be seen periodically for knee pain, the left more than the right.  Repeat X-rays of the left knee on 26 February 2002 were normal.  An MRI of the left knee on 14 March 2002 was normal other than a small effusion.  A bone scan a week later was significant for bilateral uptake in the knee caps (patellae), left > right, consistent with a stress reaction.  He was offered a lateral release (a procedure to realign the patella and treat RPPS), but declined.  An MEB was then recommended.  Three weeks later on 20 April 2002, he was playing basketball and heard a snap in his right knee.  He was thought to have a contusion.  He apparently reconsidered surgery and underwent a left lateral release on 13 May 2002 followed by rehabilitation.  On 6 December 2002, an X-ray of the right knee was normal and on 17 December 2002, a right lateral release was performed.  A 31 January 2003 orthopedic summary noted that the left knee symptoms began in 1994 after a bad parachute fall and that he had a second bad fall in 1995.  His right knee symptoms were noted to have begun in 1998 without antecedent trauma.  The CI reported that both knees continued to “pop,” give out, and were painful with running, but that both had improved with surgery.  On examination, the scars were well healed and effusion absent.  The knees were stable and without crepitus.  The range-of-motion (ROM) was noted as “from 0 to at least 105 degrees of flexion bilaterally.”  He was thought to have continued symptoms of patella-femoral arthrosis (non-inflammatory joint disease.)  At the VA Compensation and Pension (C&P) exam performed on 6 December 2002, 7 months prior to separation and 11 days prior to the right lateral release, the CI reported daily pain on the right and that the left occasionally gave way.  On examination, the knees were stable and non-tender.  There was no effusion or crepitation.  Internal rotation produced some medial discomfort.  Extension was 0 degrees and flexion 135 and 140 degrees, right and left, respectively.  The gait was normal.  The narrative summary (NARSUM) was dated 17 March 2003, 3 months prior to separation.  The CI reported a bad parachute landing in January 1994 which led to reclassification in December 1995.  He underwent a second MMRB in August 2002 after the surgery on the left knee and had surgery on the right while in the probationary period.  He was not improving and MEB recommended.  The examiner noted that the CI had full ROM at a 17 January 2003 orthopedic evaluation (not in evidence.)  On examination, the scar was well healed on the left and not mentioned for the right (implying that it was well healed as well).  There was no instability, effusion, meniscal signs, or crepitus.  The ROM was normal on the left and written at 35 degrees flexion on the right; the latter is thought to be a typo and it should have been 135 degrees.  Motion was slightly painful.  Later in the NARSUM, the examiner noted that the CI had regained full ROM, quadriceps strength, ability to ride a bicycle and swim, but could not run or walk fast for any distance secondary to knee pain.  The 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)	VA C&P ~7 Mo. Pre-Sep	Ortho ~5 Mo. Pre-Sep	
	Left	Right	Left	Right	
Flexion (140 Normal)	140	135	> 105	>105	
Extension (0 Normal)			0	0	
Comment	Stable knee	Stable knee	Painful motion noted at MEB	
§4.71a Rating	10%	10%	10%	10%	
*The MEB ROM numbers are from the VA exam of 20021206.  However, the examiner noted full ROM in the summary.  

The Board first considered if the right and left knee were separately unfitting.  Each was separately profiled at one point and each had surgery.  While the left knee was more symptomatic, the evidence supports that each knee was separately and unfitting.  The Board then directs attention to its rating recommendation based on the above evidence.  The examination most proximate to separation noted full ROM.  It was not recorded as a goniometric measurement; however, this is consistent with other measurements, though.  Regardless, the limitation in motion is not compensable in and of itself.  However, this examination did note painful motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59 (painful motion), the Board recommends a disability rating of 10% for the each knee.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the nasal septal deviation, ingrown toenail, right ring finger, LBP, tinnitus/HL, and right wrist pain conditions were not unfitting.  The Board’s threshold for countering 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.  These conditions were not profiled other than the hearing loss, which carried an H2 profile from accession to separation, and the LBP which had a temporary profile 17 months prior to separation and again on the final profile.  None were implicated in the commander’s statement or judged to fail retention standards.  An audiogram on 4 October 2002 was essentially unchanged for the 1997 baseline audiogram.  The VA C&P examination documented back ROM better than VA normal values without tenderness or spasm.  The gait was normal.  An orthopedic examination on 3 February 2003 confirmed these findings.  All contended conditions were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any significantly interfered with satisfactory 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 any of the contended conditions and so no additional disability ratings are recommended.

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 bilateral RPPS condition, the Board unanimously recommends a disability rating of 10% for each knee, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended nasal septal deviation, ingrown toenail, right ring finger, LBP, tinnitus/HL, and right wrist pain conditions, the Board unanimously recommends no change from the PEB determinations 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 Secondary to Patello-femoral Arthrosis 	5099-5003	10%	
Chronic Left Knee Pain Secondary to Patello-femoral Arthrosis	5099-5003	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121005, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20140013241 (PD201201789)

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA