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AF | PDBR | CY2012 | PD2012 01272
Original file (PD2012 01272.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201272
BRANCH OF SERVICE: Army  BOARD DATE: 20130329
SEPARATION DATE: 20040115


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (95B/Military Police) medically separated for a bilateral knee condition. He developed an aggravation of recurrent knee pain running a marathon in 2002. He was subsequently diagnosed with bilateral retropatellar pain syndrome (RPPS) and mild degenerative joint disease (DJD). There were no surgical indications, and the symptoms did not improve adequately with conservative measures to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. The knee condition was forwarded to the Physical Evaluation Board (PEB) as two diagnoses of bilateral RPPS and bilateral DJD. No other conditions were submitted by the MEB. The PEB combined the separate diagnoses as a single condition; but, retained the bilateral designation for adjudicating it as a single unfitting condition, rated 0%, referencing the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with that disability rating.


CI CONTENTION: The application states simply, “Conditions have slowly deteorated [sic] causing more discomfort and the use of external support braces.”


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. Ratings for unfitting conditions will be reviewed in all cases. The rating for the unfitting knee condition(s) is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 (DES) 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. 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.


RATING COMPARISON:

Service PEB – Dated 20031125
 VA - Service Treatment Record (STR)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Knee Pain 2⁰ to RPS and DJD
 5099-5003 0% RPS, Right Knee 5010-5260 10% STR
RPS, Left Knee 5010-5260 10% STR
No Additional MEB/PEB Entries
 Other x 2
Combined: 0%
 Combined: 30%


ANALYSIS SUMMARY : The PEB combined the bilateral knee conditions as a single unfitting condition, coded analogously to 5003 and rated 0%. The PEB may have relied on AR 635.40 (B.24f) and the USAPDA pain policy for not ap plying separately compensable Veterans Affairs Schedule for Rating Disabilities (VASRD) codes. 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 satisfy the requirement that each unbundled condition was unfitting in and of itself. 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.

Chronic Bilateral Knee Pain Condition. The narrative summary (NARSUM) notes the CI had a history of bilateral knee pain that was aggravated by running a marathon. Bilateral knee X-rays in February 2003 reportedly showed mild patellofemoral and tibial spine osteophytes. The CI’s diagnoses were bilateral RPPS and mild DJD. At the MEB exam 3 October 2003, approximately 3 months prior to separation, the CI reported burning pain in his knees. He reported that walking and stair climbing hurt his knees; his right knee locked. He was not taking any medication. The MEB physical exam noted the CI had a normal gait and the legs were without deformity. He could sit and stand well. The knee exams showed no swelling; tenderness to palpation; or instability. Range-of-motion (ROM) was noted only as “0-135.” Neurovascular exam was normal. Service treatment records (STRs) proximate to the date of separation indicated bilateral patellofemoral pain syndrome (PFPS) and noted pain with going up or down stairs, squatting or prolonged sitting; some. The last treatment note stated “still has moderate symptoms in the right knee with flexion.” No VA Compensation and Pension (C&P) exam was performed.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the combined bilateral knee pain conditions as 5003 at 0%. The VA rated the right knee and the left knee as 5010-5260 (limited knee flexion due to arthritis) at 10% each for painful motion based on service treatment records. The Board now undertook to unbundle the knees. The MEB examiner addressed the right and left knee in the exam and did not discriminate between them. Knee X-rays showed patellofemoral and knee arthritis bilaterally. The profile limitations shielded the right knee and the left knee. The commander’s statement noted that both knee conditions impaired the CI’s duty performance. The Board agreed based on the evidence in the record, that each knee was in itself unfitting. The Board noted from the record that both knees were mild and that STR close to the date of separation indicate significantly improved knee pain, with only moderate, persistent symptoms noted on the right. The Board unanimously agreed that there was reasonable doubt that the right knee met the 10% criteria of 5003 IAW VASRD §4.59 and §4.71a, but the left knee did not. Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating as follows: an unfitting right knee at 10% , and an unfitting left knee at 0% , coded as 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 AR 635.40 (B.24f ) and the USAPDA pain policy for rating the bilateral knee pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral knee pain condition, the Board recommends that each condition be adjudicated separately as follows: an unfitting right knee pain condition at 10% and an unfitting left knee pain condition at 0% and coded 5099-5003 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 his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Right Knee Pain Condition Due to Retropatellar Pain Syndrome
5099-5003 10%
Left Knee Pain Condition Due to Retropatellar Pain Syndrome
 5099-5003 0%
COMBINED (w/BLF)
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120709, 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 AR20130008809 (PD201201272)
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

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