RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01821
BRANCH OF SERVICE:  NAVY  	SEPARATION DATE:  20040908

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Electrical Mechanical Equipment Repairman) medically separated for bilateral knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Rating.   She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “chondromalacia of patella” and “pain in joint, lower leg,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated “patella-femoral syndrome secondary to mild patella-femoral chondromalacia” as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  Her condition continues to worsen and negatively impact her daily activities.  CI also contends feet, migraine, neck and shoulder conditions.  Her 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 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 20040324	VA* - (~5 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Patella-Femoral Syndrome Secondary to Mild Patella-Femoral Chondromalacia	5299-5003	10%	Left Chondromalacia	5019	10%	20040401	
			Right Chondromalacia	5019	10%	20040401	
			Left Knee Strain	5257	10%	20040401	
			Right Knee Strain	5257	10%	20040401	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20040924 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The IPEB combined the bilateral knee conditions as a single unfitting condition, rated 10%, coded analogously to 5003 (degenerative arthritis).  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints; and, IAW DoDI 6040.44, the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  If Board members judge that separate ratings are indicated IAW VASRD §4.7 (higher of two evaluations), each unbundled condition must be reasonably justified as separately unfitting to remain eligible for rating.

Bilateral Knee.  The service treatment record (STR) noted that absent direct trauma, the CI developed bilateral anterior knee pain in early 2002.  Conservative treatment modalities to include medication, activity restrictions, and focused physical therapy gave her no relief from painful symptoms.  X-rays of both knees were normal.  Due to persistent pain, she was placed on LIMDU in July 2003 and eventually was referred to a MEB.  The commander’s non-medical assessment letter implicated the CI’s knee conditions and did not recommend that she remain on active duty in a permanent LIMDU status or on an additional period of temporary LIMDU.  At the time of the MEB narrative summary (NARSUM) dated 28 January 2004, 7 months prior to separation, the CI’s primary complaint was bilateral anterior knee pain.  Her focused physical examination (PE) was detailed and normal in regards to both knees.  The DD Form 2808, Report of Medical Examination, performed on 12 March 2004 revealed bilateral “grinding” (aka…crepitus; an indication of painful motion) of her kneecaps.  Her diagnosis was listed as “patella-femoral syndrome secondary to mild patella-femoral chondromalacia” which was solely based upon her subjective history.  The examiner stated, “This [CI’s] objective findings are minimal. Most of her findings are of a subjective nature.”  Her prognosis was listed as “poor.”  

The VA Compensation and Pension examination performed on 1 April 2004, 5 months prior to separation, the CI endorsed a constant severe pain about both knee caps associated with give-way and occasional swelling.  She reported functional impairment of unable to stand, or walk for a prolonged period of time and unable to squat without pain.  The VA PE was normal excepting bilateral knee painful motion at full extension (zero degrees); although there was no decrement in her total range-of-motion (ROM).

The Board directed its attention to its rating recommendation based on the above evidence.  Board members first acknowledged a significant difference in both the subjectivity of the CI’s complaints as well as the objective PE findings between the MEB and the VA examinations with possible varying impairment ratings.  There was no record of recurrent injury or other development in explanation of the CI’s worsening stated condition leading up to the VA examination.  Board members discussed the abrupt change between 7-5 months prior to Service separation and agreed that the MEB evaluation remained consistent with most of the prior clinical encounters contained within the STR, and therefore was apportioned greater probative value in relation to an impairment rating. 

The Board then considered if each knee, having been de-coupled from the combined PEB adjudication, remained independently unfitting.  In consideration of separate ratings, the Board must also consider separate fitness assessments which justify each disability rating.  The VA assigned a 10% rating for each knee under the 5257 code (knee; other impairment) as well as 10% each knee under 5019 (bursitis), presumably with application of VASRD §4.40 (functional loss) and §4.59 (painful motion) since limitation of flexion noted on the VA exam was non-compensable.  The Board acknowledged that the sole remarkable PE finding of painful motion did warrant application of VASRD §4.59 for a minimum of 10% as applied unilaterally or bilaterally.  In light of a generally unremarkable PE of either knee, (excepting painful motion), members considered whether each knee could be reasonably justified as separately unfitting.  This case revealed minimal evidence which was equivocal for each knee.  Although it is speculative to conclude that the disability confined to the either knee would have rendered the CI incapable of performing within her occupational rating, member consensus was that it was also reasonable to surmise that it was the overall effect of both knees which rendered her unfit.  The Board concluded that the bilateral diagnosis did support a single 5003 based rating for “2 or more major joints,” as conferred by the PEB.  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’s adjudication of the bilateral knee 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.  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 knee 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 re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131003, 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 20 Nov 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:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN