RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00823
BRANCH OF SERVICE:  NAVY	 SEPARATION DATE:  20080513

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Electrician’s Mate) medically separated for a left knee condition which 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 diagnosis “osteoarthrosis, localized, primary, involving lower leg” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “osteoarthritis, left knee” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  An additional left knee condition, “status-post surgical excision of superficial abscess with no evidence of osteomyelitis,” was determined to be Category III (not separately unfitting and does not contribute to the unfitting condition).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant makes no specific contention in his application.  His 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 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 20080122	VA* - (~1 Mo. Pre–Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Osteoarthritis, Left Knee	5099-5003	10%	Residuals of Left Knee Surgery, Including ... History of Osteomyelitis	5003-5260	20%	20080409	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 13	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20080721 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:    

Left Knee Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an onset of left knee pain after a shipboard injury in 2001 (7 years pre-separation).  Significant osteoarthritis was diagnosed and the CI underwent arthroscopic debridement in late 2001.  Pain continued and a corrective surgical osteotomy (shaving of bone to better align the joint space) was performed in April 2002 (6 years pre-separation).  After an 8-month LIMDU period post-operatively, the CI returned to full duty; but, his pain and limitations gradually worsened over the ensuing years, prompting MEB referral.  A superficial abscess (not violating fascia), at the site of a tibial pin insertion for the post-operative external fixator, was diagnosed in September 2007 (8 months pre-separation), and was surgically addressed without complication (PEB Category III condition).  There is ample STR documentation of the absence of a persistent effusion, joint instability, or locking.  The most severe range-of-motion (ROM) limitation recorded in the STR was flexion to 80 degrees (normal 140, minimum compensable 45) very early in the course (2002).  Measured ROM eight months later was flexion to 130 degrees and extension to 0 degrees (normal), and an entry shortly before the NARSUM reported ROM as grossly normal.  There are no STR entries suggesting more significant ROM limitation or periods of incapacitation after surgical recovery.  

The NARSUM was conducted 23 November 2007 (6 months pre-separation) and documented persistent pain (unelaborated), noting that the CI had recently begun to use a cane.  The documented functional limitations were running, jumping, negotiating stairs, prolonged walking (1/2 mile tolerance), and prolonged standing (15-20 minute tolerance).  The NARSUM physical examination (no comment regarding gait) recorded tenderness, “mild” effusion, the absence of signs of inflammation with regards to the prior abscess, stability to stress testing in all planes, and negative signs of impingement (McMurray’s).  The NARSUM measured ROM was flexion to 130 degrees.

A VA Compensation and Pension (C&P) examination was conducted 9 April 2008 (1 month pre- separation) and there was no indication of interim injury or other exacerbation of the condition.  The examiner documented “constant” pain rated 9/10 “elicited by physical activity and stress.”  Objective locking or instability was denied, but the use of a cane was noted.  The VA physical examination recorded a normal gait, tenderness, “guarding of movement,” the absence of effusion or signs of inflammation with regards to the prior abscess, stability to stress testing in all planes, and negative signs of impingement.  The VA measured ROM was flexion to 30 degrees (also recorded as the onset of pain), with additional limitation of 10 degrees with repetition, and extension to 0 degrees (normal).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was compatible with VASRD §4.71a criteria for the Service ROM evidence and other ratable findings.  The VA C&P reported flexion of 30 degrees is the threshold for a 20% rating under 5260 (limitation of flexion), and was the basis of the VA rating.  The Board considered conceding probative value to the VA ROM evidence in support of a recommendation for the same code and rating; but, members agreed that this could not be justified.  There is no clinical rationale for the abrupt deterioration of ROM reflected by the VA evidence, and there is a great preponderance of evidence corroborating the NARSUM ROM evidence as more consistent with baseline joint motion.  Given that the functional limitations evidenced in this case were not fully captured by §4.71a joint rating criteria, the Board also considered analogous rating under 5299-5262 (tibia and fibula, impairment of) which confers ratings for contiguous knee disability: 10% for “slight,” 20% for “moderate,” and 30% for “marked.”  Members agreed, however, that the analogous application of this fracture code which rates for non-union or malunion, with no fracture or such complications present, was not sufficiently justified by VASRD §4.20 (analogous ratings) in this case.  Members further agreed that no disability greater than moderate could be supported by the evidence; thus, even if conceded, this rating option would offer no practical benefit to the CI.  The evidence does not support the presence of locking with frequent effusions or other criteria to achieve a rating higher than 10%, or of joint instability for additional rating.  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 left 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 left 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 20140219, 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 22 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 USN 
- XXXXXXXXXXXXXXXXXXXX former USN

						  XXXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)