RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01962
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150217
SEPARATION DATE:  20050315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Basic Marine) medically separated for left knee pain.  The condition could not be adequately rehabilitated so that she could complete basic military training.  She was placed on light duty and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “closed dislocation of patella,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated her condition as unfitting and rated it at 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I feel my rating should be changed, increased, because over the years my condition has gotten worse and will get worse as I get older.  I have frequent trips to the VA ER and have done alternative things such as receive injections to alleviate the stress on my knee.  This injury also hinders me from pursuing a career that I want instead I have to do administrative work because I can’t be on my feet for long periods of time.”

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 Veterans Affairs Schedule for Rating Disabilities (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 20050128	VA* - (~5 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Patellar Dislocation	5099-5003	10%	Lateral Instability Left Knee	5257	10%	20050810	
			Left Patello-Femoral Syndrome	5260	10%	20050810	
Other x 0 (Not In Scope)	Other x 1	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20050922 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Left Knee Pain.  Treatment records evidence that the CI dislocated her right patella on 19 September 2004.  She was evaluated by Sports Medicine.  The CI was treated with activity modification, a knee brace, and anti-inflammatory medications.  A Sports Medical treatment note dated 8 December 2004 noted that the CI ambulated with crutches for 11 weeks with increased left knee pain with weaning off crutches.  The physical examination demonstrated an effusion, tenderness to palpation, and positive apprehension test.  At a Physical Medicine and Rehabilitation consult dated 7 March 2005 the CI reported left patella dislocation when not wearing the knee brace and rated the knee pain at 5/6 on a scale of 1/10.  The CI reported intermittent, dull, aching pain made worse with bending and climbing.  The physical examination demonstrated left lower extremity generalized weakness, mild atrophy, and an over mobile patella; left greater than right.

The narrative summary (NARSUM) noted that the CI was placed in the rehabilitation platoon, received physical therapy, had three episodes of instability, and persistent left knee effusion.  The physical examination demonstrated an antalgic gait with partial weight bearing, moderate left knee effusion, left quadriceps atrophy, and a positive patellar apprehension test.  The ligaments were noted as stable.  A diagnosis of left patellar dislocation was rendered.

At the VA Compensation and Pension examination performed 5 months after separation, the CI reported intermittent left knee pain, stiffness, swelling, giving way, and. locking.  The pain was relieved by Motrin and worse with prolonged walking and stairs.  The CI wore a knee brace for prolonged walking, but did not use any other assistive devices.  She was a full-time student.  The physical examination demonstrated pain with left knee flexion beyond 130 degrees, anterior tenderness to palpation, lack of endurance, and mild anterior instability.  A diagnosis of left patello-femoral syndrome was rendered.

The goniometric range-of-motion evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Knee ROM
(Degrees)	MEB ~3 Mo. Pre-Sep	VA C&P ~5 Mo. Post-Sep	
Flexion (140 Normal)	120	140	
Extension (0 Normal)	0	0	
Comment	Partial weight bearing, antalgic gait, brace, painful motion.  History of instability, but stable ligament examination	Painful motion and instability without limitation of motion	
§4.71a Rating	10% 	10%(painful motion) + 10%(instability) 	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB adjudicated the left patellar dislocation as unfitting with a disability rating of 10%, coded 5003 (analogous to degenerative arthritis).  The VA rated the left knee at 10% for pain (patellofemoral syndrome) and 10% for instability.  The Board first considered if there was evidence for a higher than 10% rating for the left patellar dislocation.  The Board noted that the CI remained on crutch ambulation for 12 weeks, was not able to fully weight bear, and wore a knee brace.  The NARSUM demonstrated objective evidence of left knee functional impairment due to pain and decreased use; however, there was no evidence of recurrent patellar dislocation.  The Board determined that the evidence did not support a 20% rating under VASRD code 5257 for recurrent knee subluxation.  The Board then considered whether there was evidence for a separate rating for left knee instability as established by formal VA policy in effect at the time of separation (General Counsel Opinion of 1 July 1997 and Fast Letter 04-22 of 1 October 2004).  Although the NARSUM noted three episodes of instability, the NARSUM examination and multiple sports medicine treatment notes documented no ligament instability.  The VA examination document mild ligament instability.  The Board determined that this case does not justify Board consideration of separate ratings for instability and painful motion.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the left patellar dislocation condition was appropriately recommended in this case.

The Board concluded therefore that this condition could not be recommended for additional disability rating.

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 left patellar dislocation 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 20131028, 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) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd 16 Jun 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 USMC
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USMC