RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-01054
BRANCH OF SERVICE: NAVY 	SEPARATION DATE:  20080815

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Aviation Electrician, medically separated for “DJD [degenerative joint disease] Bilateral Knees w/Chronic Pain,”  with a disability rating of 10%.

CI CONTENTION:  The CI contends for a higher rating for his knees and one other condition (OSA) found not unfitting by the PEB.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20080611	VARD - 20090126	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DJD Bilateral Knees w/Chronic Pain	5099-5003	10%	Residuals, R Knee Partial Medial Meniscectomy	5259	10%	20081007	
			Residuals, L Knee Partial Medial Meniscectomy	5259	10%	20081007	
Obstructive Sleep Apnea	Cat III		Obstructive Sleep Apnea	6847	NSC*	20081007	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

DJD Bilateral Knees W/Chronic Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent left knee surgery in August 2003 for a tear of the left medical meniscus.   In October 2005, the CI underwent a second left knee surgery for arthritis, varus deformity, medial meniscus tear, and patellofemoral chondromalacia.  In March 2006, the CI underwent right knee surgery for right knee varus deformity, arthritis, and a complex medial meniscus tear.   An orthopedic note dated 28 December 2007 documented reports of postoperative pain improvement.  The physical examination showed mild right knee valgus deformity, fairly neutral left knee alignment, stable ligaments, and 0-120 degrees flexion bilaterally.  The examiner opined that due to significant arthritis in both knee the CI would continue to have pain.  

The narrative summary (NARSUM) physical examination showed tenderness to palpation in the inner knee aspect and joint line tenderness bilaterally.  There is no evidence of instability.   

At the VA Compensation and Pension (C&P) examination performed 2 months after separation, the CI reported bilateral knee pain with occasional weakness. He used Aleve gel caps for pain and chondroitin.  The physical examination showed a normal gait, non-tender surgical scars, no tenderness to palpation and no pain with motion bilaterally.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee pain condition as a single Service disability rating of 10%, coded analogously to 5003.  VA rated each knee 10%, coded 5259 (Cartilage, semilunar, removal of, symptomatic), citing reports of pain associated with knee surgery.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single Service disability rating must be reasonably justified as separately unfitting in order to remain eligible for Service rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.    If Board members determine by performance based fitness criteria that the condition is reasonable justified as separately unfitting and is separately ratable; IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended.  In this case a bilateral condition was profiled, determined to fail retention standards, and implicated in the commander’s statement.  Members agree therefore that each knee is separately unfitting and that identical coding and ratings are applicable.  There was no limitation of motion which attained a minimum rating under the diagnostic codes for limitation of flexion or extension (5260, 5261). However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), frequent locking with effusions or any indication of dislocated meniscus or loose body (5258), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for each knee.  The Board also considered the related Category 2 condition, bilateral tibial fractures at age nine, was documentation of the CI’s clinical history and not a ratable condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s not unfitting determination of the obstructive sleep apnea (OSA).  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The OSA was not profiled or implicated in the commander’s statement and not judged to fail retention standards.  All were reviewed and considered by the Board.   There was no performance based evidence that the OSA significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the OSA and right shoulder pain contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the left knee condition, the Board unanimously determined that it was unfitting and recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the right knee condition, the Board unanimously determined that it was unfitting and recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended OSA and right shoulder conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  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	
Left Knee DJD with Chronic Pain	5099-5003	10%	
Right Knee DJD with Chronic Pain	5099-5003	10%	
RATING (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140227, 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 2 Mar 16 ICO XXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 2 Mar 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 22 Feb 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 29 Feb 16 ICO XXXXXXXXXXXXXXX

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

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

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

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

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

     d. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 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.