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AF | PDBR | CY2012 | PD2012 01855
Original file (PD2012 01855.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201855
BRANCH OF SERVICE: Army  BOARD DATE: 20130411
SEPARATION DATE: 20041222


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (13F/Field Artillery Forward Observer) medically separated for knee pain. The CI first reported left knee pain in 2002, but by 2004 was complaining of pain in both knees. Despite testing and treatment including medication, the knee pain could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards. He was consequently issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The knee condition, characterized as “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, rated as slight/constant” as unfitting and rated 10% in accordance with the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated a 10% disability rating.


CI CONTENTION: “I was awarded 10% by the military and awarded 20% by the VA for my knees.”


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 pain is addressed below. 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 PEB – Dated 20041103
 VA - (1.5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Bilateral Knee Pain 5099-5003 10% DJD, Right Knee 5260-5010 10% 20050207
DJD, Left Knee 5260-5010 10% 20050207
No Additional MEB/PEB Entries
 Other x 9 20050207
Combined: 10%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 50505 .


ANALYSIS SUMMARY: The PEB combined the bilateral knee pain conditions as a single unfitting condition rated as 5099-5003 (analogous to arthritis) at 10%. The PEB relied on the USAPDA pain policy for not applying separately compensable Veterans Administration 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. 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.

Chronic bilateral knee pain. The narrative summary (NARSUM) notes the CI was having trouble with his knees for years without any associated trauma. Magnetic resonance imaging (MRI) performed on 7 March 2004 of the right knee showed mild swelling suggesting strain and pes anserinus tendinitis; the left knee was negative. Service treatment record (STR) notes indicated assessments of retropatellar pain syndrome and patellar tendinitis. At the MEB exam performed 14 October 2004, approximately 2 months prior to separation, the CI reported that his knees hurt and the pain was increased by activity such as vigorous exercise, running, squatting, bending, or carrying heavy weights. He reported that he could walk a mile but then would have to stop due to pain in his knees. The MEB exam noted “minimal, if any, swelling” of the knees. There was bilateral tenderness to palpation of the joint lines and patella of both knees, more on the right than the left. Gait was normal with no knee instability or signs of meniscal injury. Active range-of-motion (ROM) was flexion to 90 degrees left and 80 degrees right knee (normal 140 degrees), with “moderate tenderness at the limits of range of motion evaluations.” The examiner noted “His condition is stable and the prognosis is good.” At the VA Compensation and Pension (C&P) exam, 7 February 2005, 6 weeks after separation, the CI reported intermittent pain in his knees, greater on the right than the left. His pain was increased by activities such as walking more than twenty minutes, going up two flights of stairs or standing for more than thirty minutes. He rated the pain as three out of ten and described it as annoying. The VA exam showed no swelling or joint laxity of the knees. There was medial joint line tenderness to palpation on the right. ROM was flexion of the right knee 100 degrees; of the left knee 115 degrees. The examiner stated that there were no DeLuca criteria and there was no objective evidence of pain during the ROM examination of either knee. Knee X-rays showed minimal degenerative changes of the posterior patella bilaterally, otherwise normal knee joints. The CI denied any problems with his activities as a college student. He had no problems with home activities, but had to hire someone to mow the lawn.

The Board directs attention to its rating recommendation based on the above evidence. The PEB bundled the bilateral knee pain condition as a single unfitting condition and rated as 5099-5003 (analogous to degenerative arthritis) at 10%. The VA rated each knee separately at 10% as 5260-5010 (limited leg flexion with arthritis) with application of §4.59 (painful motion), combined with bilateral factor at 20%. The Board next undertook to unbundle the bilateral knee pain condition. Both the right and left knees were addressed in treatment visits in the STR. The permanent profile was for chronic bilateral knee pain. The commander’s statement noted “chronic knees problems prevent him from performing his duties.” The Board concluded that the evidence in the record supports that each knee was separately unfitting. Both the MEB and C&P exams and the knee MRI reports support that the right knee findings were more significant than those of the left knee. The Board unanimously agreed that the right knee rose to the level of a 10% disability rating IAW VASRD§4.59, but the left knee did not. Having unbundled the bilateral knee pain condition, the Board found that it did not result in any rating benefit to the CI. Therefore, 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 for the bilateral knee pain 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 bilateral knee pain condition was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board. In the matter of the chronic bilateral knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. 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
Chronic Bilateral Knee Pain Condition 5099-5003 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121003, 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 AR20130009559 (PD201201855)

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

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