RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxx	CASE:  PD-2013-02529
BRANCH OF SERVICE:  Army	BOARD DATE:  20150625
SEPARATION DATE:  20041208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Aircraft Structural Repair) medically separated for bilateral knee pain.  The knee condition did not improve adequately to meet the physical requirements of his Military Occupational Specialty (MOS).  A profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Patellofemoral pain syndrome” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “bilateral knee pain” as unfitting, rated 0%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals at that time, and was medically separated.  

CI CONTENTION:  His condition continues to cause pain, negatively impact his daily activities, and his civilian doctor’s supporting evidence should prove a higher rating is required. His complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON: 

IPEB - Dated 20041021	VA* - Based on Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	0%	Bilateral Knee Pain, with Shin Pain	5099-5024	10%	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5 (Not in Scope)	
RATING:  0%	RATING: 10%	
*Derived from VA Rating Decision (VARD) dated 20050208 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:  

Bilateral Lower Extremity Pain.  Starting in June 2002, this CI was seen and treated on multiple occasions for pain in the legs.  Radiologic imaging studies were unremarkable.  He was treated with physical therapy (PT), anti-inflammatory drugs, and other conservative measures.  In spite of all treatment efforts, his pain persisted and an MEB was initiated.  The MEB physical examination (PE) was on 13 July 2004.  The PE was “entirely normal with exception of tattoos on both upper arms.”  Knee range-of-motion (ROM) was not recorded.  The MEB narrative summary (NARSUM) diagnosis was patellofemoral pain syndrome (PFPS).  The CI was medically separated from service on 8 December 2004.  On 29 June 2011, 7 years later, he had a VA Compensation and Pension (C&P) exam.  He reported that he continued to have pain in both lower extremities.  On PE, his gait was antalgic; PE of the knees showed no instability or crepitation.  Tests for ligamentous laxity were negative.  There was no objective evidence of pain with active motion of the knees.  Knee ROM was right flexion 90 degrees, left flexion 108 with normal bilateral extension. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB bundled the two knees together, chose the VASRD code 5099-5003, and assigned a 0% disability rating.  The Board must determine if the PEB’s approach of combining the knees under a single rating was reasonably justified in lieu of separate ratings.  The Board must apply separate ratings in its recommendation if compensable ratings for each knee are achieved in accordance with 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 agreed that the evidence did not support a conclusion that each of the knee problems, separately, would have rendered the CI unable to perform his required military duties.  Therefore, the Board does not recommend a separate disability rating for each of the knees.  The Board determined that it is appropriate for the right knee pain to be bundled with the left knee pain and treated as a single unfitting condition. 

The Board carefully reviewed the data from the examinations described above.  The July 2004 MEB exam was much closer to the date of separation (DOS) and therefore had greater probative value.  At that exam, the CI’s physical examination was “entirely normal with exception of tattoos on both upper arms.”  The Board determined that the bilateral knee condition was essentially non-compensable, based solely on the VASRD §4.71a diagnostic codes for the knee and leg (5256 through 5263).  However, IAW VASRD §4.10 (functional impairment), §4.40 (functional loss), and §4.45 (joints), when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  A 10% rating is warranted when there is satisfactory evidence of functional loss and disability due to pain.  There was no path to a higher rating since there was no evidence of ligamentous instability, subluxation, or other seriously disabling bone or joint abnormality.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% disability rating for the unfitting, bilateral knee pain.   

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 noted above, PEB reliance on the USAPDA pain policy was operant in this case.  The CI’s bilateral knee pain condition was adjudicated independently of that policy by this Board.  In the matter of the bilateral knee pain, the Board unanimously recommends a disability rating of 10%, coded 5299-5261, IAW VASRD §4.10, §4.40, and §4.45.  There were no other conditions within the Board’s scope of review for consideration.   
RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Bilateral Knee Pain 	5299-5261	10%	
RATING 	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131106 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
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 xxxxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20150012424 (PD201302529)

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 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						    xxxxxxxxxxxxxxxxxxxxxxxxxxxx
						     Deputy Assistant Secretary of the Army
						         (Review Boards)