RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00197
BRANCH OF SERVICE:  marine corps	BOARD DATE:  20150313
SEPARATION DATE:  20060331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Expeditionary Airfield & Aircraft Recovery Specialist) medically separated for a continued left knee patellar subluxation and instability.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty and he was referred for a Medical Evaluation Board (MEB).  The left knee condition, characterized as “pathological dislocation of lower leg joint” and “other joint derangement, not elsewhere classified lower leg,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “continued left knee patellar subluxation and instability with probable post-traumatic degenerative changes of both the patella and femoral cartilage,” 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:  “I have a painful recurring knee injury which affects every step of every day.  While I was in the service, I sought medical attention dozens of times, and was neglected and shooed away by Navy corpsman.  Instead of checking this serious injury, I was given light duty and Motrin which not only didn’t cure the problem; it made it worse by the constant wear and tear of military actions.  I eventually stopped seeing medical attention because I knew the corpsman wouldn’t care and send me on my way.  When I was given my exam by the doctor at the VA, the doctor was incredibly ignorant and disrespectful.  He didn’t listen and jerked my knee into painful positions and decided everything was fine.  I have to take thousands of steps every day.  Each one is painful.  My knee cracks and pops at every bend.  I am not asking for 100% disability, just a fair look at how bad my knee is.  I was told I could not perform duties it in the service because it was so bad – and then given 0% by the VA.  How is that possible? ”

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 20060118	VA* - (~15 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Patellar Subluxation and Instability	5299-5003	10%	Left Knee Torn Medial Retinaculum with Patellar
Subluxation, Post Surgical Repair	5259-5257	10%	20070807*	
Other x 0 (Not In Scope)	Other x 4	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20080630 (most proximate to date of separation [DOS]).  *Exam not in evidence.

ANALYSIS SUMMARY:  

Left Knee Patellar Subluxation and Stability Condition.  The CI entered the service with a history of an injury to the left knee in 1994 at which time his left patella (knee cap) was subluxed (partially dislocated) laterally and was associated with a hemarthrosis (blood in the joint).  Arthroscopic surgery was carried out in June 1994 and included shaving of the medial femoral condyle (protrusion of the upper femoral bone), excision of a large medial patellar (kneecap) plica (tissue of the inner part of the knee) and an open repair of the medial patellar capsular retinaculum (fibrous tissue).  A consultation was obtained in 1997 as part of the Military Entrance Processing Station examination for the CI to enter the service.  Examination was unremarkable except for a 3-inch scar and a 1/4-inch atrophy of the left thigh and left calf; and X-rays of the left knee were normal.  In 1999, the CI presented to orthopedics with a 6-month history of recurrent episodes of left knee patellar subluxation and episodes of knee swelling without subluxation.  Physical therapy (PT) was discussed for quadriceps muscle strengthening.  X-rays revealed patella alta (high riding patella) with mild subluxation.  Over the following years, the CI fell and was treated with a knee immobilizer and crutches; he reported multiple episodes of subluxation without dislocation of the patella; the knee cap popped out while playing basketball; and he had pain and swelling associated with running.  In 2002 he reported 20+ episodes of left patella subluxation in the 3 prior years.  Examination by PT revealed the range-of-motion (ROM) of both knees was 135 degrees; and treatment for quadriceps strengthening was again recommended.  Possible surgery by orthopedics was raised; however, the CI wanted to remain in the Marine Corps and chose not to undergo surgery.  A magnetic resonance imaging (MRI) was reported to show disruption of the medial patellar femoral ligament, lateral osteophyte (excess bone) formation and a narrow trochlea (a groove where the patella rests on the femur).  A dynamic CT scan showed a shallow trochlea, lateral patellar negative tilt, and medial retinaculum disruption.  Surgery was again discussed in June 2002.  In 2003 the CI felt his knee popped out to the lateral side of his leg and popped back in place when he straightened his leg out.  An MRI in 2005 of the left knee demonstrated patellar subluxation with irregularity of the attachment site of the medial retinaculum which may represent a region of prior trauma; and no other internal derangement of the left knee was visualized.

The MEB narrative summary dated 8 November 2005 reiterated the CI’s history and noted the CI continued to have patellar instability while running and chronic night pain and aching in his left knee.  Examination revealed some vastus medialis oblique (part of the quadriceps muscle) wasting, but good muscular tone compared to his right knee.  He had a positive J sign (lateral patellar deviation with extension) and an exaggerated patellar tilt laterally.  The lateral retinaculum (fibrous tissue on the outside of the kneecap) was tight and there was tenderness to palpation along the medial patellar facet (articulation site with the femoral condyle) as well as a positive apprehension exam (to assess the stability of the patella).  He had a Q angle of 10 degrees (14 degrees +/- 3 degrees normal for males) and a full range-of-motion of the left knee with flexion 0 degrees to 135 degrees.  Varus and valgus were stable at 30 degrees of knee flexion and 0 degrees of knee flexion.  He had a positive patellar grind (to assess abnormal patellar movement) and a negative Lachman exam (to determine meniscus tears).  The examiner’s impression was continued left knee patellar subluxation and instability with probable post-traumatic degenerative changes of both the patella and femoral cartilage, which was exacerbated by military service.  Aggressive surgical measures were offered to the CI, but it was explained to him that due to lateral femoral hypoplasia (decreased size of the femoral condyle); his chances for complete relief of pain were low.  The non-medical assessment dated 5 January 2006 indicated the CI had been dealing with the injury for quite some time and complied with all therapies and doctors’ orders since his first diagnosis.  He never used the condition as an excuse to avoid deployment or work.  His condition, however, became noticeably more painful.  Neither the MEB examination nor the VA C&P examinations were available for review; however, a VA primary care note dated 21 June 2007, 15 months after separation) indicated the CI had ongoing left knee pain, which seemed to be getting worse over the prior couple of months.  Exercise did not help the knee pain and the kneecap had dislocated.  As a result he had difficulty bending or squatting.  Pain was reported to be 7-8/10 severity towards the end of the day after work; and in the morning the pain was bad as well.  The CI took Advil (a nonsteroidal anti-inflammatory medication) and glucosamine/chondroitin (an over-the-counter supplement for knee pain).

The Board directed its attention to its rating recommendation based on the above evidence.  The Navy PEB assigned a 10% rating using code 5299-5003 (degenerative arthritis) for continued left knee patellar subluxation and instability with probable post-traumatic degenerative changes of both the patella and femoral cartilage.  “EPTS-Reduced by 0%” was annotated on the PEB Proceedings document as well.  The VA assigned a 10% rating using code 5259-5257 (cartilage removal-knee impairment) for left knee torn medial retinaculum with patellar subluxation, post surgical repair.  The Board sought a higher rating and noted that code 5257 (Knee, other impairment-recurrent subluxation or lateral instability) has slight, moderate, and severe rating options.  The CI had a multitude of subluxations of the patella that were confirmed by several examiners and by imaging studies.  While he was not incapacitated by the pain and pushed through time and time in order to stay in the Marine Corps, he nevertheless had a significant subluxation condition that was aggravated by years of military service.  Although surgery was offered on several occasions without a likelihood of pain relief, the CI chose not to have any surgical procedures performed while on active duty.  Therefore, it would not be unreasonable to consider either a moderate rating at 20% or a severe rating at 30% using code 5257 to be applied for the CI’s condition, which also has features consistent with degenerative changes of the both the patella and femoral cartilage.  In a VA General Counsel Letter dated 1 July 1997, noted “since the plain terms of DC 5257 and 5003 suggest that those codes apply either to different disabilities or to different manifestations of the same disability, the evaluation of knee dysfunction under both codes would not amount to pyramiding under section 4.14” and “the availability of separate ratings under DC 5257 and DC 5003.”  The Compensation Service Bulletin May 2012 also discusses instability of the knee joint and recurrent subluxation.  Therefore, the Board can consider application of either code individually or combined since the CI already had been awarded a 10% rating using code 5299-5003.  Although subjectively the CI had multiple subluxations, he was neither incapacitated nor limited in his performance, albeit the subluxations were problematic and painful and he pushed through to perform his duties.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the patellar subluxation condition and 10% for the degenerative changes of the patella and femoral cartilage.

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 knee subluxation condition, the Board unanimously recommends a disability rating of 20%, coded 5257 IAW VASRD §4.71a and a disability rating of 10% coded 5099-5003 for degenerative changes of the patella and femoral cartilages.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Patellar Subluxation and Instability	5257	20%	
Left Knee Degenerative Changes	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
		   DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref:   (a) DoDI 6040.44
       (b) PDBR ltr dtd 31 Jul 15 ICO XXXXXXXXXXXXXXX
       (c) PDBR ltr dtd 31 Jul 15 ICO XXXXXXXXXXXXXXX
	 (d) PDBR ltr dtd 24 Jul 15 ICO XXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 31 Jul 15 ICO XXXXXXXXXXXXXXX
	 (f) PDBR ltr dtd 11 Aug 15 ICO XXXXXXXXXXXXXXX
	 (g) PDBR ltr dtd 27 Jul 15 ICO XXXXXXXXXXXXXXX
	 (h) PDBR ltr dtd 14 Aug 15 ICO XXXXXXXXXXXXXXX

1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (h).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXX, former USN: Placement on the Temporary Disability Retired List (TDRL) for six months at time of discharge with a 60 percent disability rating; following the TDRL period, placement on the Permanent Disability Retired List with a 40 percent disability rating. 

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.