RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01254
BRANCH OF SERVICE:  NAVY 	SEPARATION DATE:  20041001

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Aviation Ordnanceman Striker) medically separated for bilateral knee pain.  The knee condition could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  “Bilateral knee pain” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB forwarded one other condition (right ankle pain) for PEB adjudication.  The Informal PEB found the “bilateral knee pain” unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The right ankle condition was determined to be 
Category II (related to the unfitting condition).  The CI made no appeals and was medically separated from active duty.

CI CONTENTION:  The CI indicates his VA rating was increased to 40%.  His complete submission, with attachments, 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 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 20041001	VA* - no proximate records available	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	DJD Right Knee…	5010-5260	10%	No Data	
	5099-5003	10%	Residuals…Fracture…Left Knee…	5260	10%		
Right Ankle Pain	Category II	DJD Right Ankle, s/p ORIF…	5010-5271	10%		
Other MEB/PEB Conditions x 0	Other x 1	
COMBINED RATING:  20%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20120124 (most proximate to date of separation [DOS])  

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  In August 2002, the CI injured his knees during a motor vehicle accident (MVA).  Both knees were examined with diagnostic arthroscopy.  On the right, he had complete avulsion of the right anterior cruciate ligament (ACL).  He underwent open repair of the ACL avulsion fracture.  After surgery, he was treated with physical therapy (PT) and acupuncture.  In June 2003, he underwent a shrinkage procedure on the right ACL, to increase the stability of the right knee.  This resulted in increased stability of the right knee.  However, in spite of all treatment efforts, the CI continued to have significant knee pain and an MEB was initiated.  

The MEB narrative summary (NARSUM) was dated 11 May 2004.  The CI complained of bilateral knee pain.  He reported that he was unable to do any running without pain.  Even swimming was painful to him.  On physical examination (PE), there was poor balance when standing on the right leg alone.  The Board could not determine whether this poor balance was due to the right knee or the right ankle.  Crepitus was noted in both knees, but no edema.  McMurray’s and Lachman’s tests were negative.  Both knees had full range-of-motion (ROM), but there was pain with extreme flexion.  Neurological exam of the legs revealed normal reflexes and muscle strength.  The CI was medically separated from service on 1 October 2004.  Seven years later, in November 2011, he had a VA Compensation and Pension (C&P) exam.  The Board determined that this C&P exam was too long after the date of separation (DOS), and therefore had very little probative value.  The Board was not able to find a C&P exam that was temporally proximal to the DOS.

The Board directed attention to its rating recommendation based on the evidence.  The PEB assigned a 10% rating to each knee, for a combined disability rating of 20%.  The May 2004 MEB exam was just 5 months before DOS, and therefore had significant probative value.  At that exam, bilateral knee ROM was normal.  Therefore, the Board determined that the painful, unfitting knee condition was essentially non-compensable based solely on the VASRD §4.71a diagnostic codes for loss of knee motion (5260 and 5261).  However; IAW VASRD §4.40, §4.45, and §4.59, 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 limitation due to painful motion of a major joint.  There was no path to a higher rating for either knee since there was insufficient evidence of ligamentous instability, subluxation, or other seriously disabling joint abnormality that would justify a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the bilateral knee pain.  Each knee warrants a 10% rating IAW VASRD §4.40, §4.45, and §4.59.   

Right ankle pain.  During the August 2002 MVA, the CI also injured his right ankle.  He suffered a fracture of the right medial malleolus, and he underwent open reduction and internal fixation (ORIF).  On 9 January 2003, he was seen for follow-up by Orthopedics, and his right ankle was doing well.  The PEB adjudicated the right ankle condition as Category II.  The Board’s main charge with respect to this condition is to assess the appropriateness of the PEB’s adjudication.  The Board’s threshold for countering a fitness determination 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.  The right ankle condition was thoroughly reviewed and considered by the Board.  There was insufficient evidence in the record that the right ankle condition significantly interfered with satisfactory performance of military duties.  The Board determined, by majority decision, that this condition did not constitute a separately unfitting condition for disability rating purposes.  After due deliberation, and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB adjudication of the right ankle condition.  Therefore, no additional disability rating is 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.  In the matter of the unfitting bilateral knee pain, and IAW VASRD §4.40, §4.45, and §4.59, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right ankle pain, the Board recommends by a majority vote, no change from the PEB determination as Category II.  The single voter for dissent did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130910, 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 DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 7 Dec 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their 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:

- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USN  
- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USMC