RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00987
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20080601

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Equipment Mechanic) medically separated for bilateral knee conditions 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 knee conditions were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E (NAVMED 6100 missing, see below).  The Informal PEB adjudication was “fit to continue on active duty.”  The CI requested a reconsideration which initially affirmed the PEB findings, and then requested a second reconsideration for which additional documents were provided.  The final reconsideration PEB adjudicated “osteoarthritis right knee” and “osteoarthritis left knee” as separately unfitting, rated 10% right and 0% left.  For each of the knee conditions separate Category II (contributing to the unfitting condition) diagnoses were attached.  The CI made no further appeals and was medically separated.  

CI CONTENTION:  The VA rated him higher for his unfitting conditions.  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 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 DVA, 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:  

Recon - Dated 20080319	VA* - (~5 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Osteoarthritis Right Knee	5099-5003	10%	Surgical Residuals, Left Knee 	5014-5260	10%	20080104	
S/P Meniscectomy, R Knee	Category II					
Osteoarthritis Left Knee	5099-5003	0%	Surgical Residuals, Right Knee 	5014-5260	10%	20080104	
S/P Chondroplasty, L Knee)	Category II					
S/P Meniscectomy, L Knee 	Category II					
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7 (Includes Not Service Connected)	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20080617 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Right and Left Knee.  The service treatment record (STR) documents an atraumatic onset of bilateral knee pain in 2004, with worsening symptoms and clinical presentation in 2006.  A torn meniscus of the left knee was demonstrated by magnetic resonance imaging (MRI) for which the CI underwent a meniscectomy in August 2006; and, with similar symptoms and MRI confirmation, underwent the same procedure for the right knee in February 2007.  With suspicion of a new meniscal tear, the CI underwent a second arthroscopy of the left knee in August 2007 (10 months pre-separation); but, at surgery the meniscus was intact and the joint was debrided (chondroplasty).  Although the CI remained symptomatic for both knees, an STR entry soon after this last surgery seems to indicate that the MEB was initiated for the left knee.  Other than immediate post-operative periods, there are no STR entries documenting range-of-motion (ROM) worse than flexion to 120 degrees (normal 140, minimum compensable 45) for the left knee and 115 degrees for the right.  There are multiple STR entries confirming bilateral knee stability to stress testing, with none to the contrary.  There are multiple STR entries (after surgical interventions) confirming the bilateral absence of joint impingement (locking) or persistent effusions, with none to the contrary.  There are no STR entries documenting gait disturbance or periods of incapacitation after surgical recovery.

The narrative summary (NARSUM) was conducted 2 October 2007 (8 months pre-separation) and was directed only to the left knee.  It documented persistent pain (not elaborated) which “makes it difficult for him to use shipboard ladders, walk on steel decks, and to bend and stoop.”  The NARSUM physical examination (left knee only) recorded tenderness, a “mild” effusion, and stability to stress testing in all planes.  The measured ROM (left knee only) was flexion to 115 degrees and extension to minus 2 degrees (normal 0, minimum compensable minus 10).  The last outpatient entry in the STR is after the NARSUM (February 2008, 8 months pre-separation) and documents the bilateral absence of effusion, stability to stress testing, and no signs of meniscal impingement.  Flexion was 115 degrees on the right and 130 degrees on the left.

A VA Compensation and Pension (C&P) examination was conducted 4 January 2008 (5 months post-separation) and documented separate right and left knee conditions.  The examiner noted “daily” pain interfering with negotiating stairs, squatting, running, and other impact activities.  The VA physical examination did not comment on gait, although noted that no brace or assistive device was required; and, a general medical C&P examiner from 6 weeks previously documented a normal gait.  The VA orthopedic examiner recorded crepitation on the right but not left, the bilateral absence of effusion, bilateral stability to stress testing, and no signs of joint impingement.  The VA measured ROM was flexion to 125 degrees on the right and 100 degrees on the left, and bilateral extension to 0 degrees; annotating painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  It is first clarified that the PEB’s Category II diagnoses for each knee are intrinsic to the rated conditions and cannot be separately rated without pyramiding (VASRD §4.14); thus, they are appropriately subsumed in the individual joint ratings.  The final Reconsideration PEB, in response to the CI’s appeal and submission of additional evidence, conferred ratings for both knees, each analogous to 5003 (degenerative arthritis); and, the 10% rating for the right knee is compliant with criteria of VASRD §4.71a, conceding painful motion.  The VA’s separate 10% ratings under 5014-5260 (osteomalacia [defaulting to criteria of 5003] rated as limitation of flexion) cited painful motion.  It is unclear how the PEB rationalized the 0% rating for the left knee, although the PEB documentation does not indicate that any Service or DoD guidance was applied.  Members agreed that both VASRD §4.59 (painful motion) and §4.40 (functional loss) were adequately supported by the evidence to achieve a minimum compensable rating of 10% for the left knee.  Furthermore it should be considered that, IAW VASRD §4.7 (higher of two evaluations), the application of code 5259 (cartilage, semilunar, removal of, symptomatic) is easily justified for each knee, and provides for a 10% rating independent of any other criterion.  There is no evidence for compensable ROM limitation, frequent effusions, or locking which would support a rating higher than 10% for either knee under any applicable code; and, no grounds for additional rating of instability.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a rating of 10% for each knee; proposing code 5259 for each.

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 and left knee conditions, the Board unanimously recommends a disability rating of 10% for each joint, coded 5259, IAW VASRD §4.71a.  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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Surgical Residuals of Meniscectomy, Right Knee 	5259	10%	
Surgical Residuals of Meniscectomy, Left Knee 	5259	10%	
RATING (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140224, 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 16 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 22 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 28 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 21 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX 

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (f) are approved.

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

     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
       
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.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)