RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX		CASE:  PD-2014-02069
BRANCH OF SERVICE:  NAVY 		SEPARATION DATE:  20061010

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Mineman) medically separated for bilateral knee conditions that could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on LIMDU and referred for a Medical Evaluation Board (MEB).  The diagnoses “bilateral knee pain” and “partial motor paralysis, right leg” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded two other conditions (hypertension and hyperlipidemia) for PEB adjudication.  The Informal PEB adjudicated “bilateral knee pain” as unfitting, rated 10%.   

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 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:  

Recon IPEB - Dated 20060629	VA* - (10 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Pain	5299-5003	10%	Patellofemoral Syndrome, Left Knee	5024	0%	20070816	
Right Knee Pain	5299-5003	10%	Patellofemoral Syndrome, Right Knee	5024	0%	20070816	
Partial Motor Paralysis, Right Leg	Category II	No VA Claim	
Other MEB/PEB Conditions x 2 (Not In Scope)	Other x 17	
RATING:  20%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20071009 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Bilateral Knee Conditions (Subsuming Partial Motor Paralysis, Right Leg).  The service treatment record (STR) confirms an onset of bilateral knee pain in 2002 soon after basic training.  This was attributed to abnormal patellar tracking, was worse on the right, and an arthroscopic lateral release of the patella was performed in May 2004 (29 months pre-separation).  The operative report noted the use of a padded tourniquet and no complications.  Early post-operative STR entries documented good range-of-motion (ROM) and normal strength (5/5), but a physical therapy (PT) entry 6 weeks after the surgery noted an antalgic gait and 3/2 extensor strength.  An orthopedic entry from the same period records a PT report that “he has missed eleven of his appointments” and the finding, “Actively, he can hold full extension if I help him up; but coming to full extension gives him pain in his patellofemoral joint, which limits his ability to do this.”  There are multiple STR entries from that point forward which document progressively weakening quadriceps strength with inability to fully extend the knee and a persistent limp.  Multiple entries indicate that this was due to pain and guarding with progressive quadriceps atrophy and weakness from disuse, with a diagnosis of “disuse atrophy.”  Various examiners document a disparity between voluntary findings (extensor weakness and gait disturbance) and observed function or conflicting objective findings.  Although various STR entries relate a history that the CI was engaged with PT to rehabilitate his quadriceps, only two PT entries are in evidence (the one above and a later one noting 2/5 quadriceps strength but “inconsistencies” with exam findings).  Earlier electrodiagnostic (EMG) testing was normal except for non-specific findings for the quadriceps, possibly due to “decreased effort” with a “low probability” of neuropathy.  A repeat EMG later in the course was normal.  Magnetic resonance imaging demonstrated normal ligaments, menisci, and joint structures, but suggested the possibility of an occult fracture (contradicted by a later normal bone scan).  The CI underwent a psychiatric evaluation for concerns that the disability was “volitional” given the lack of clinical evidence for nerve or muscle pathology.  The psychiatrist also documented occultly observed function incongruent with that displayed by exam, including an inconsistent and “exaggerated” gait disturbance.  The psychiatric evaluation was comprehensive and the details (including dissatisfaction with and desire to separate from the Service, and poor coping skills) were consistent with the examiner’s opinion that the CI “does not appear to have a conversion disorder [ratable condition] ... [and] ... exaggeration/malingering is possible and should be considered.”  The CI saw a second neurologist after the psychiatric evaluation, who subsequently provided a letter during the period of the initial IPEB appeal opining that “it is possible that this weakness is a consequence of the surgery;” although, this opinion is not supported by the findings of his preceding consult (quadriceps atrophy and weakness, but the only sensory deficit was on the left, and the EMG was normal).  There are multiple STR entries documenting non-compensable flexion; and, the absence of persistent effusions, locking, or instability.  There are no STR entries contrary to any of these ratable features, or documentation of incapacitating episodes.

The NARSUM was conducted 3 May 2006 (5 months pre-separation), and is supplemented by a follow-up evaluation by the same orthopedist on 1 August 2006 (10 weeks pre-separation); the latter at legal request associated with the initially planned FPEB appeal.  The NARSUM noted that the MEB was primarily directed at “inability to fully extend his right leg,” adding, “Additionally he notes that he has bilateral knee pain.”  The clinical course as described above was extensively detailed, although the contemporary pain acuity or specific functional limitations were not elaborated.  The orthopedic diagnosis of disuse atrophy was cited, recounting the multiple evaluations from above which “failed to establish a definitive reason for his inability to extend his right leg.”  In the subsequent evaluation during appeal the NARSUM examiner noted speculation by the neurologist (presumably the one above, but not captured in clinical notes) that improper use of the surgical tourniquet (left too long or inflated too high) may have been responsible for the condition (e.g., muscle damage as the etiology); but, related that this “cannot be confirmed from any notes we have.”  The NARSUM physical examination recorded some atrophy of the left quadriceps (10% difference in measured circumference, calves equal) and “unable to extend his left leg greater than 15 degrees with less motor strength noted.”  In the follow-up (legal appeal) evaluation the examiner recorded 1-2/5 quadriceps strength, “trouble just lifting it up against gravity.  He can fire his muscles, but they are significantly weak.”  Per both exams there was full bilateral strength in all other groups, normal sensory and reflex findings, and negative joint signs of effusion, meniscal impingement, or instability.  The ROM for both knees was otherwise described as “full” in the NARSUM, with measured bilateral flexion to 135 degrees (normal 140, minimum compensable 45) recorded in the follow-up entry.

A VA Compensation and Pension (C&P) examination was conducted 16 August 2007 (10 months post-separation) and documented constant pain in both knees, periodic use of a cane (although gait disturbance was attributed to bilateral plantar fasciitis), and limitations with running, sports, and walking over a mile, but “no job restrictions.”  The right knee extensor deficit which dominated the NARSUM was not mentioned in the VA history, although the physical examination recorded that “right knee has no active extension ... [and] ... measurable atrophy in both the calf and thigh.”  The physical examination for both knees was otherwise normal, noting 5/5 strength (right quadriceps strength not specifically documented), and the absence of tenderness or instability.  Measured ROM was bilateral flexion of 140 degrees (“no pain”), passive extension to 0 degrees on the right, and active extension 0 degrees (normal) on the left.  The C&P diagnoses were “right knee lateral release with significant muscle weakness” and “left knee patellofemoral syndrome [PFS];” although, the rating decision applied the diagnosis PFS to the rating and coding of both knees.

The Board directed attention to its rating recommendation based on the above evidence.  With regards to the PEB’s Category II diagnosis for the right leg, members agreed that the preponderance of clinical evidence does not support the presence of an organic “paralysis.”  The EMG and neurology evidence sufficiently preclude a nerve etiology; and, the possibility of muscle damage as a tourniquet mishap is overly speculative and not consistent with the operative or immediate post-operative records.  Intrinsic to the Category II condition, however, is the appropriateness of rating the functional consequences analogously under code 5299-5261 for limitation of extension; and, that option is addressed below.  Although the disability attendant to the left knee only may be defensibly argued as not separately unfitting, member consensus was that the PEB’s de facto separate ratings precluded the Board option of recommending rating(s) for only the right knee.  The PEB’s separate 10% ratings analogous to 5003 (degenerative arthritis) was compliant with VASRD §4.71a criteria for the Service ROM and other ratable findings, other than the option of a higher rating for the right knee under 5261.  The VA’s separate non-compensable ratings were under code 5024 (tenosynovitis, compatible with PFS), citing the normal flexion measurements and absence of painful motion.  The C&P right knee diagnosis of muscle weakness was not rated, and limitation of extension was not referenced in the rating decision.  There is no evidence for compensable limitation of flexion, 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.  The Board thus turned to deliberation regarding the option of a higher rating for the right knee via analogous application of 5261, which offers a rating of 20% for extension limited to 15 degrees; and, ratings of 30%, 40%, and 50% for limitations to 20, 30, and 45 degrees respectively.  Core to this decision is the judgment of whether the functional limitation of extension in this case is appropriately rated as disability for a joint without organic pathology causing the disability.  Although conceding that the disability itself was significant, member consensus was that it was not appropriately rated as joint ROM limitation; since, joint mobility was normal or nearly so and the extensor mechanism was unimpeded.  Alternate approaches of coding and rating for muscle disability or service connected pain and/or psychiatric impairment were discussed, but member consensus was that none of these routes were adequately supported by the evidence; and, furthermore, the Board does not have the latitude for changing diagnoses, challenging Service specialty opinions, or adding new conditions within the Board’s scope as defined above.  The record also makes clear that there were a host of probative value issues in this case mitigating the exam findings for rating limitation of extension.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the bilateral knee conditions.

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 conditions and IAW VASRD §4.71a, the Board by a majority vote 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 20140502, 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 6 Jan 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:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN

				XXXXXXXXXXXXXXX
	     			Assistant General Counsel
				(Manpower & Reserve Affairs)