RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00505
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141223
SEPARATION DATE:  20071217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Equipment Operator) medically separated for a bilateral knee condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The bilateral knee condition, characterized as “pain in joint involving lower leg” and “chondromalacia of patella,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “patellofemoral syndrome bilaterally” as unfitting, rated 10%, and “chondromalacia patellae” as Category II (contributing to the unfit condition).  The CI appealed to the Formal PEB (FPEB) which affirmed the IPEB findings and rating.  The CI made no further appeals and was medically separated.

CI CONTENTION:  He believes the PEB should have rated both knees as they both have the same problem.  He went on light duty for both knees and only elected to have the operation on his right knee on doctor’s recommendation to see if it would fix the knee problem before having the same procedure on his left knee.  His knee problems did not go away and this left him non-deployable and unable to run to pass the physical fitness test.  His knee problems prevented him from performing the job he was trained to do as an Equipment Operator (EO).  His complete submission, with attachments, 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:

Service Recon IPEB – Dated 20090911	VA - (1.5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Patellofemoral Syndrome Bilaterally	5099-5003	10%	Fracture, Right Tibia, P/O Healed, Claimed as Right Knee	5262-5257	20%	20080124	
			Ligamentous Strain, Left Knee	5257	10%	20080124	
Chondromalacia Patella	Category II					
	Not Unfitting	No VA Entry	
Other x 0 (Not In Scope)	Other x 7	
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20080521 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board’s initial charge in this case was directed at determining if the PEB’s approach of combining the bilateral knee conditions under a single rating was justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each knee condition are achieved IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself.  Not uncommonly this approach by the PEB reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  Thus the Board must maintain the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Bilateral Knee Condition.  From 2002 through 2007, the CI was seen numerous times for knee complaints; more often, left greater than the right and consistently diagnosed with patellofemerol pain syndrome (PFPS).  Physical therapy and medications were not successful in relieving his pain.  Radiologic tests noted bilateral quadriceps tendonopathy (overuse syndrome/tendonitis) and probable additional right-sided patellar tendon tear.  Due to persistent lateral tracking of the right kneecap, he underwent a patellar realignment surgical procedure on 28 November 2006.  There was a single post-operative encounter by Sports Medicine dated 2 July 2007 (5 months prior to separation).  That also was the MEB addendum, which noted the CI’s chief complaint as bilateral knee pain.  The physical exam (PE) revealed bilateral knee tenderness with right-sided effusion and quadricep atrophy.  Motor strength and range-of-motion (ROM) were normal.  His diagnosis remained PFPS.  The DD Form 2808 specifically noted right knee joint with “pop and grinding with movement” and left knee with “pain.”  The commander’s non-medical assessment provided no details for specific limitations other than the previous LIMDU profiled restrictions.  At the VA Compensation and Pension examination performed 6 weeks after separation, the CI reported right knee instability upon walking and climbing stairs.  He was under no treatment for his right knee pain described as “occasional discomfort” with ambulation.  Additionally, he described as “having some recurrent discomfort about the left knee.”  His PE revealed a normal gait and decreased ROM bilaterally.  There was no instability or grinding and no comment in regards to painful motion.  The goniometric ROM 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.

DOS 20071217
Knee ROM
(Degrees)	MEB ~5 Mo. Pre-Sep
(20070717) 	VA C&P ~1.5 Mo. Post-Sep
(20080124) 	
	Left	Right	Left	Right	
Flexion (140 Normal)	140	140	100	100	
Extension (0 Normal)	0	0	0	0	
AO Comment	+ tenderness	+ effusion;
+ atrophy;
+ tenderness	-	-	
§4.71a Rating	10%	10%	0-10%	0-10%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the left knee was examined more frequently, the evidence revealed that the surgical right knee was associated with a greater degree of disability.  The disparity in both physical and radiographic findings was such that the question was raised of whether the left knee was reasonably justified as separately unfitting.  The left knee was not the significant “surgical” focus in the service treatment record and although the attendant physical findings were very similar, they were less when compared to the right knee which yielded a torn tendon.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority agreed that it was the combination of pathology from both knees that rendered the CI unfit and that the PEB’s rating analogously defaulted to 5003 criteria without regard to confirmed abnormal radiographic findings, a 10% rating for two major joints was appropriate.

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 recommended no change in the PEB’s bundled condition at a combined 10% rating.  The single voter for dissent did not elect to submit a minority opinion.  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 20140116, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review
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 29 May 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 USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC

			  XXXXXXXXXXXXXXX
	     		  Assistant General Counsel
			  (Manpower & Reserve Affairs)