RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-00222
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20140506
SEPARATION DATE:  20031130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (0619/Wire Chief) medically separated for a bilateral knee condition.  He initially injured his left knee in 1995 when it was hit by a mortar plate.  The left knee progressively worsened despite one visit to physical therapy and two steroid injections.  Radiology exams indicated early chondromalacia in both knees.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “bilateral chondromalacia patella” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “bilateral chondromalacia patella” as unfitting, rated 20%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was put on NON deployment status and required to take physical therapy for my knees. I later was told that I was going to deploy to Iraq and that I would get my treatment there. I never received any medical treatment for my knees. During my medical board it did not show that I was deployed. My medical record showed that I did not attend my physical therapy”.

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; and, no additional 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 Naval Records (BCNR).

The Board acknowledges the CI’s opinion that a service medical error contributed to his disability.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCNR/or the United States judiciary system.

RATING COMPARISON:

Service IPEB – Dated 2003093	VA - (1 Mos. Pre-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Chondromalacia Patella	5299-5003
	20%	Right Knee Chondromalacia Patella	5099-5019	0%	20031021	
			Left Knee Chondromalacia Patella	5099-5019	0%	20031021	
Other x 0 (Not in Scope)	Other x 1/NSC x 3	20031021	
Combined:  20%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20031230 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  
 
Bilateral Knee Condition.  The earliest service treatment record (STR) in regards to knee complaints or pathology was in June 1999 with a 2-week history of left knee pain due to “walking and running”, denying any specific method of injury.  Subsequent records indicate a remote history of having direct trauma to the left knee in 1995.  He was evaluated by orthopedics, diagnosed with left knee chondromalacia and treated conservatively for persistent left knee pain.  An additional complaint of right knee pain (without new injury) surfaced in July 2002.  While being seen for his left knee pain with complaints of “feels like it will give way,” it is noted that “the right knee has similar symptoms, but not as bad.”  Radiologic tests from August 2002 and July 2003 demonstrated bilateral chondromalacia patella.  Most STR entries focused on the left knee complaint, with a paucity of later notes referring to a diagnosis of a bilateral condition.  The LIMDU with restrictions specifically list only the single left knee condition.  Clinical notes consistently documented knee range-of-motion (ROM) as full, and no entries specified painful motion.  There were occasional findings of bilateral knee crepitus and grinding, but no evidence of ligamentous instability, signs of cartilage injury or effusion.  The narrative summary, prepared 5 months prior to separation, noted the CI having a persistent burning sensation beneath his left knee cap.  Additionally, it summarized prior injection treatments to both knees.  Other than a bilateral patellar grind, physical examination revealed both knees negative for effusion, ecchymosis, swelling, joint line tenderness or instability.  Painful motion was not documented.  At the VA Compensation and Pension examination performed a month prior to separation, the CI reported chronic aching and burning about the left knee, swelling after a 2-mile run, and “tends to pop with maneuvers.”  He endorsed similar symptoms to his right knee as well.  His physical examination revealed a normal gait and mild tenderness about both knee caps.  There was no instability or grinding and ROM was normal.  The post-separation VARD noted the absence of either painful or limited ROM as for a 0% rating.

The Board directs attention to its rating recommendation based on the above evidence.  The evidence in this case revealed that the left knee was associated with greater disability than the right knee.  At first glance, it appears that the PEB’s listed “bilateral” diagnosis is a single “bundled” condition, but actually his bilateral condition is separately rated for each knee at 10% analogously coded under the arthritic code of 5003.  The right knee was not implicated in the commander’s statement and the Board conceded that despite the absence of painful motion, the evidence of abnormal radiographic findings coupled with similar examination findings on both knees, a minimum 10% for each knee is supported.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a combined disability rating of 20% for the bilateral knee condition was appropriately recommended in this case.

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 chondromalacia patella 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	
Bilateral Chondromalacia Patella 	5299-5003	20%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130501, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

MEMORANDUM FOR DIRECTOR , SECRETARY OF THE NAVY COUNCIL OF REVIEW         BOARDS
Subj:  PHYSICAL  DISABIL ITY           BOARD  OF   REVIEW (PDBR) RECOMMENDATIONS 
Ref:	(a) DoDI 6040.44
(b)	CORB ltr dtd 8 Aug 14

In accordance with reference  (a),    I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandums, approve the recommendations of the PDBR that the following individual's records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy's Physical Evaluation Board:

-	XXXXXXXXXXXXXXX, former USMC, XXX XX XXXX
-	XXXXXXXXXXXXXXX, former USMC, XXX XX XXXX
-	XXXXXXXXXXXXXXX, former USMC, XXX XX XXXX 
-	XXXXXXXXXXXXXXX, former USN, XXX XX XXXX
-	XXXXXXXXXXXXXXX, former USMC, XXX XX XXXX