RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00376
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140805
Separation Date:  20041014

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a unit drilling Reservist Petty Officer Third Class (SK3/Storekeeper) medically separated for a right knee condition.  The knee condition could not be adequately rehabilitated to meet the physical requirements of her rating or satisfy physical fitness standards.  She was issued a 4T profile and referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “chondromalacia of patella,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “chondromalacia right knee with decreased ROM” as unfitting, rated 10%.  The CI appealed to the Formal PEB, after which a Reconsideration PEB affirmed the PEB’s finding and rating.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “This documentation is in regards to my right and left knee that are both covered under service-connected disability.  I have experienced a growing decline in flexion in both knees as well as pain intense enough to keep me on pain management medication.  Since my last claim was declined over 2 years ago, the deterioration in my knees have [sic] continued.  Despite the Uni-replacement performed on my knees, the pain that has accompanied my knees have only gotten worse.  At this time arthritis has set into the joints of both knees.  My job is pending at best due to the limitation in my movements and the inability to perform my job at a satisfactory level.  This situation is getting worse in my everyday living and adjustments to this situation have reached its limits.  I have nerve damage which required multiple nerves to be removed in an attempt to control the pain which still persist.  I am requesting an increase in my service-connected disability and a reevaluation of my condition.  The injury I suffered caused me to have no less then 4 surgeries on both knees and the 5th surgery resulted in Bilateral replacement of both knees.  I was out of work for over a year, and could not return to a civilian job until I could find one that could accommodate my physical limitations.  My gastroesophageal reflux disease (GERD) has evolved into Gastritis and I now have a Hiatal Hernia which has caused esophagus erosion and digestive problems.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting right knee is addressed below; no additional conditions (the contended left knee, arthritis, nerve damage, GERD and hiatal hernia) are not within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board of Correction for Naval Records.

The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden her but notes the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  Additionally, while the Board considers DVA evidence proximate to separation in arriving at its recommendations, DoDI 6040.44 prescribes a 12-month interval for special consideration of post-separation evidence.  This evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Service Recon PEB – Dated 20050629	VA - (10 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chondromalacia Right Knee w/Decreased ROM	5099-5003	10%	Chondromalacia Grade IV Right Patellofemoral Joint	5260	10%	20050823	
No Additional MEB/PEB conditions	Other x0	20050823	
Combined:  10%	Combined:  10%	
Derived from VARD dated 20050823 (most proximate to Date of Separation)

ANALYSIS SUMMARY:

Chondromalacia of the Right Knee with Decreased Range-of-Motion (ROM) Condition.  The CI had a history of recurrent patellar dislocations and a tibial tubercle transfer, at age 12 to the right knee.  She sustained a right knee injury when she slipped on a mopped floor on 12 October 2004 while on a temporary period of active duty for less than 30 days.  The CI reported immediate pain, swelling and difficulty bearing weight.  The examiner documented tenderness to palpation, medial crepitus and moderate edema and erythema over the knee with a normal motor exam.  The CI continued with right knee pain despite medications.  On 28 October 2004, a civilian orthopedist documented severe, constant worsening right knee pain at the medial joint line.  The physical exam findings were limited ROM to 60 degrees and the CI would not allow flexion beyond that, a 2+ effusions and exquisite medial joint line tenderness.  The examiner diagnosed right knee internal derangement with possible medial meniscus tear.  The CI underwent a right knee arthroscopic arthroplasty of the patellofemoral joint on 9 November 2004.  The post-operative diagnosis was severe chondromalacia (Grade IV) of patellofemoral joint.  The CI underwent a series of 3 right knee Hyalgan injections and attended 13 rehab sessions over 6 weeks for active ROM and strengthening exercises.  

On 4 April 2005, approximately 7 months after the CI had been released from active duty, the MEB narrative summary (NARSUM) exam documented right knee pain and an inability to run or sit for prolonged periods of time.  The examiner opined that the CI’s history of prior knee surgery was most likely exacerbated by the fall.  The MEB NARSUM physical exam findings are summarized in the chart below.  

The VA Compensation and Pension (C&P) exam performed on 3 August 2005, 10 months after separation, documented that the CI had burning pain over the anterior knee and was unable to flex the knee more than 50 degrees; she was wearing a soft knee brace.  The CI walked without bending her right knee and she stated the pain was aggravated by prolonged walking, standing or sitting.  The VA C&P physical exam findings are summarized in the chart below.

There were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation as summarized in the following chart:

Right Knee ROM(Degrees)	MEB Exam on 20050404	VA C&P Exam on 20050803	
Flexion (140 Normal)	90	55	
Extension (0 Normal)	0	0	
Comment	Pos. effusion; Stable ligaments; Abnormal gait	Pos. painful motion & abnormal gait; mild atrophy right thigh; Pos. crepitus; No laxity collateral ligaments	
§4.71a Rating	10%	10%	
The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the right knee condition as 5099 analogous to 5003 (arthritis, degenerative) and rated it 10%.  The VA coded the right knee condition as 5260 (leg, limitation of flexion) and rated it 10% (flexion limited to 45 degrees).  No exam documented limited ROM to a compensable level without application of §4.59 (painful motion).  VA Schedule for Rating Disabilities (VASRD) §4.71a specifies for code 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion.”  There was no objective evidence of knee instability proximate to separation and no documentation of patella dislocation.  The knee condition could not be reasonably rated higher than 10% using any exam proximate to separation or any alternate coding schema.  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 for the 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 chondromalacia of the right knee with decreased ROM 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 2014010, 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 11 Mar 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 USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN