RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxx	CASE:  PD-2014-00156
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20070205

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Electrician’s Mate) medically separated for a bilateral knee condition.  The bilateral knee conditions could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  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.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “bilateral knee pain” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI elaborated no specific contention in his application.  

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 20061130	VA* - (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5299-5003	10%	Right Patellofemoral Knee Syndrome	5299-5260	10%	20070718	
			Left Patellofemoral Knee Syndrome	5299-5260	10%	20070718	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2 	
RATING:  10%	COMBINED RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20070821 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The PEB combined the right and left knee conditions as a single unfitting condition coded 5099-5003 (analogous to degenerative arthritis) and rated 10%.  The approach by the PEB not uncommonly reflected its judgment that the combination of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

Bilateral Knee Condition.  The narrative summary (NARSUM) notes the CI had a history of bilateral knee pain.  The CI had arthroscopic surgery of the right knee in January 2003, with debridement of a medial plica (abundant soft tissue in the joint) and the left knee in July 2004 which noted some inflammation of the joint (synovitis) and early degenerative changes (arthritis and chondromalacia ([thinning of cartilage]).  Notes in the STR indicated the CI continued to have bilateral knee pain after the surgeries.  Bilateral knee X-rays were normal and magnetic resonance imaging (MRI) of both knees was performed 24 May 2005.  The right knee MRI showed chondromalacia patella (CMP) with a small joint effusion and the left knee MRI showed a non-displaced lateral meniscus tear (MT), tendonosis (degenerative changes) of the quadriceps tendon, and CMP with a small joint effusion.  At an orthopedic evaluation 13 July 2006, the CI reported bilateral knee pain, left greater than right.  A second left knee arthroscopy was performed 15 September 2006 and there was diffuse DJD, without any MT.  After the second arthroscopy the left knee pain was improved, but continued despite physical therapy.  An MEB was initiated because the CI could not run and limitation of impact activities was recommended to reduce the physical stress on his knees.  

Two limited duty boards (LIMDU) in record dated 9 November 2005 and 11 May 2006 referred to the left knee only.  A temporary L3 profile dated 6 October 2006 listed physical limitations including running, jumping, squatting, prolonged standing, and no cycling.  The Non-Medical Assessment (NMA) dated 30 October 2006 noted the CI was unable to perform the duties of his Rating due to “other tear of cartilage or meniscus knee current” and listed the physical limitations noted on his profile.  The 27 November 2006 PEB JDETS noted a history of bilateral knee pain with “evidence of CMP” with full range-of-motion and no instability and indicated the CI was unfit.  The MEB exam dated 25 October 2006 noted a history of bilateral knee surgeries, but addressed current issues of the left knee only.  

The Board first considered whether the evidence in record supports that each knee remained reasonably considered unfitting when separated from the PEB’s combined adjudication as established above.  In this case, the CI underwent surgery of both knees.  Following the surgeries, the CI continued to report pain in both knees.  The temporary profile in October 2006 noted limitations that would apply equally to both knees and the JDETS implicated both knees. The Board considered that the two LIMDUs and the MEB exam addressed only the left knee.  The CI had recently had surgery on the left knee, by a different surgeon than had performed the surgery on the right knee, however, the documented degenerative changes of both knees were equally likely to be aggravated by continued military service.  After deliberations, the Board concluded that each knee was reasonably considered unfitting and eligible for rating.  The coding and rating features were essentially identical for both knees, therefore the Board considered its rating recommendation for the left and right knee conditions together at the time of separation.  

The MEB exam dated 20 October 2006, 4 months before separation, noted left knee ROM of extension-flexion 0-120 degrees (normal 0-140) and the examiner indicated the exam was otherwise unchanged from the orthopedic evaluation 13 July noted above, which noted the knee was stable.  The MEB physical exam did not address the right knee.

The VA Compensation and Pension (C&P) exam dated 18 July 2007, 5 months after separation, was documented identically for both knees.  The CI reported constant bilateral knee pain aggravated by weight bearing activities, with swelling after running and lack of endurance.  He denied weakness, fatigability, locking, giving way, or dislocations.  He was not receiving treatment for either knee at the time of the exam and neither knee caused incapacitation.  The exam noted a normal gait.  There was no tenderness, crepitus, swelling, effusion, locking, guarding of movement, subluxation, instability, or evidence of meniscal injury of either knee.  Bilateral knee ROM was 0-140 degrees, with painful motion noted and there was no additional loss of ROM with repetition.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 10%, coded 5299-5003 (analogous to degenerative arthritis) and the VA rated the right and left knees each 10%, coded 5299-5260 (analogous to limited leg flexion) citing functional loss due to painful motion.  The Board noted that coded as 5003 the bilateral knee condition met the 10% rating based on imaging evidence of degenerative arthritis in two major joints.  However, the Board must recommend separate ratings for each unfitting condition if they are achieved according to VASRD rating guidelines and members agreed that the evidence supports a 10% rating for each knee coded as 5299-5260 IAW VASRD §4.59 (Painful motion).  The Board reviewed to see if a higher rating was supported for either or both knees with any applicable VASRD code.  However, there was no evidence of sufficient limited ROM based on ROM alone, instability, meniscal injury, impairment of the tibia/fibula, or ankylosis of either knee to support a higher rating.  The Board thus determined that the evidence supports a 10% rating for each knee, coded 5299-5260 and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the unfitting left knee condition and a 10% rating for the unfitting right 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, the Board unanimously recommends a disability rating as follows: an unfitting right knee and an unfitting left knee, each rated 10%, both coded 5299-5260 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Right Knee Pain Condition	5299-5260	10%	
Left Knee Pain Condition	5299-5260	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140102, 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 

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	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)