RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxx	CASE:  PD-2014-00163
BRANCH OF SERVICE:  NAVY	SEPARATION DATE: 20070410  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Seaman) medically separated for a right knee condition which could not be adequately rehabilitated to meet the physical requirements of her Rating or satisfy physical fitness standards. She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The MEB forwarded the diagnosis “pain in joint involving lower leg” as the sole submission to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “anterior knee pain s/p medial meniscectomy, right knee” 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:  The CI contends that his right condition has negatively affected his life and that is also caused problems with his left knee.  The 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 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 20061228	VA* - (~4 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P Meniscectomy Right Knee	5299-5003	10%	S/P Meniscectomy Right Knee	5257-5019	10%	20061229	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20070529 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Right Knee Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of a twisting injury to the right knee on shipboard in July 2009.  Pain and swelling persisted and magnetic resonance imaging (MRI) demonstrated a meniscal tear (complex posterior and anterior horns).  Surgical intervention was delayed because of pregnancy, and the CI underwent an arthroscopic meniscectomy in August 2006 (9 months pre-separation); the operative note documenting intact ligaments.  There are no post-operative notes evidenced in the available STR.  Pre-operative notes reflected a resolved effusion, a stable joint, and range-of-motion (ROM) to 130 degrees flexion (normal 140, minimum compensable 45).  There is no documentation of any incapacitating episodes after surgical recovery.

The NARSUM was conducted 17 October 2006 (6 months pre-separation) and stated, “Currently, her right knee pain is located anteriorly and bothers her with prolonged standing, walking, running, or ladders.  She currently denies any mechanical symptoms of locking or catching in the right knee.”  The NARSUM physical examination recorded tenderness, the absence of effusion, stability in all planes, and 5/5 strength.  The NARSUM measured ROM was flexion to 130 degrees “without significant pain.”  

A VA Compensation and Pension (C&P) examination was conducted 29 December 2006 (4 months pre- separation) and documented pain rated 4-5/10 “exacerbated by prolonged walking, sports, and squatting.”  The VA physical examination recorded a normal gait, the absence of tenderness, swelling, or crepitus, and stability in all planes.  The VA measured ROM was flexion to 130 degrees specifying the absence of painful motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was consistent with VASRD §4.71a criteria (conceding painful motion or functional loss) for the MEB ratable findings and ROM evidence.  The VA’s 10% rating under 5257-5019 (bursitis, defaulting to criteria of 5003; the prefix 5257 implies instability which was not in evidence) cited painful motion (conflicting with C&P opinion).  It is noted that code 5259 (cartilage, semilunar, removal of, symptomatic) is easily justified in this case, and provides for a 10% rating independent of any other criterion.  There is no evidence for compensable ROM impairment, frequent effusions, or locking which would support a rating higher than 10% under any applicable code; and, no grounds for additional rating of instability.  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 adjudication of the right knee condition (noting that the PEB’s coding prefix of 5299 is inaccurate and should be 5099).

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 right 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 20131225, 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 1 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:

- XXXXXXXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)