RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX.	CASE:  PD-2014-01592
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20091129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Aviation Supply Specialist, medically separated for “left knee pain” with a disability rating of 10%.

CI CONTENTION:  The applicant made no specific contention, but listed several conditions on his application, degenerative arthritis both knees, left knee injury, PTSD & Bipolar Disorder, sleep apnea.  The CI’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 - 20090925	VARD - 20100125	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis Left Knee	5099-5003	10%	Status Post Arthroscopy with Osteochondral Transfer, Left Knee	5260	0%	20091214	
			Residual Scar, Left Knee	7804	0%	20091214	
Right Anterior Knee Pain	Cat III	Right Knee Degeneration with Lateral Meniscal Tear	5260	0%	20091214	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Degenerative Arthritis Left Knee.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent left knee surgery in October 2007 for “autologous osteochondral transfer” and “lateral release.”  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “osteochondral lesion left knee” for PEB adjudication.  At the time of the physical therapy clinic appointment on 17 April 2009, 7 months before separation, the CI reported that his left knee continued to get stronger and more stable, but he was “having weather related pain.”  On examination he had swelling, limited motion, and quadriceps atrophy (right quad measured 21 inches and left only measured 20.25 inches on the left).  The examiner noted slight weakness in his left hip flexor and vastus medialis oblique.  At the time of the physical therapy clinic appointment on 18 September 2009, 2 months before separation, the CI reported persistent left knee instability, popping, weakness, stiffness, persistent limp, and hamstring and calf tightness.  He also reported that his knee buckled while carrying his daughter which caused him to fall down the stairs.  Limitations included inability to run, squat, or drive for longer than an hour.  On examination his left knee ROM was limited 100 degrees of flexion (normal 140).  His flexion increased with “over pressure” and was limited by pain.  At the VA Compensation and Pension examination on 14 December 2009, 3 months after separation, the CI reported that since he had been out of the service, he had constant, chronic daily bilateral knee pain for which he took no medication.  Physical examination showed that the CI had full normal strength against resistance of his bilateral lower extremities.  There was no swelling, effusion, tenderness or laxity.  His left knee ROM was painless and slightly limited to 130 degrees of flexion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition 10% (coded 5099-5003, analogous to degenerative arthritis).  The VA rated the left knee condition 0% (coded 5260, limitation of flexion), citing that a 10% evaluation was “not warranted unless the evidence [showed] painful motion, a limitation of motion as a result of pain, slight recurrent subluxation or lateral instability, leg flexion limited to 45 degrees, leg extension limited to 10 degrees, a malunion of the tibia and fibula with slight symptomatology, or when the evidence [showed] a condition identified as genu recurvatum, with insecurity objectively demonstrated with weight-bearing.” There was no limitation of motion which supported a 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) as adjudicated by the PEB.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (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).  There is therefore no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any applicable code, and no grounds for additional rating based on the presence of instability.  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 left knee condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that right knee pain was not unfitting.  He was initially found “fit” by the PEB to continue to perform his military duties, despite his bilateral knee pain.  He non-concurred with the finding and requested the PEB reconsider their finding or else he would request a formal board.  The PEB reconsidered their finding of fitness and found him unfit for left knee pain, but not for right knee pain.  The right knee condition was not implicated in the commander’s statement.  It was reviewed and considered by the Board.  There was no performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance at separation.  The service treatment record shows very few clinical appointments for right knee pain.  After due deliberation, and 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 right knee contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right knee condition, the Board unanimously recommends no change from the PEB determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration.  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 20140321, 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 24 Jun 16

      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 USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC 

						XXXXXXXXXXXXXXXXXXXX
	     				  	Assistant General Counsel
						(Manpower & Reserve Affairs)