RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02251
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150317
SEPARATION DATE:  20050801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Electrician) medically separated for a right knee condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The “lateral meniscus tear, right knee,” “patellar tendonitis, right knee,” and “chondromalacia patella, right knee,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “lateral meniscus tear, right knee” as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining patellar tendonitis, right knee and established diagnosis of chondromalacia patella, right knee conditions were determined to be Category III (conditions not separately unfitting and not contributing to the unfitting condition).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 Military/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 20050613	VA* - (~3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Meniscus Tear, Right Knee	5257	10%	Right Knee Condition	5259-5262	20%	20050503	
Chondromalacia Patella, Right Knee	Category III	No VA Placement	
Patellar Tendonitis, Right Knee	Category III	No VA Placement	
Other x 0 (Not In Scope)	Other x 5 	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20050803 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Meniscus Tear, Right Knee.  On 11 June 2003, this CI twisted his right knee and suffered a lateral meniscus tear.  Seven months later, in January 2004, he had his first right knee arthroscopic surgery and partial removal of the lateral meniscus.  After surgery, he underwent an aggressive course of physical therapy (PT).  However, in spite of treatment, his knee problems persisted and MEB was initiated.

The MEB narrative summary exam was on 19 January 2005, approximately 7 months prior to separation.  The CI reported right knee pain, as well as episodic “giving way” of the right knee.  On physical examination (PE), the CI was alert and in no acute distress.  Gait and station were stable.  He was ambulating without any assistive devices.  On PE of the right knee, there was moderate joint line tenderness, and also some mild tenderness of the patellar tendon.  There was no instability about the patella.  Patellar grind test was negative.  Anterior drawer testing revealed 5mm of laxity, and there was moderate right quadriceps atrophy.  In fact, the difference between the right and left thigh muscles was approximately one centimeter.  Muscle strength in the right lower extremity was normal.  Range-of-motion (ROM) of the right knee was not recorded.  The diagnostic impression for the right knee was: lateral meniscus tear, patellar tendonitis, and chondromalacia patella.  Approximately a week later, on 25 January 2005, the CI underwent a second right knee arthroscopic surgery.

On 17 May 2005, approximately 3 months prior to separation, the CI had a VA Compensation and Pension (C&P) exam.  He reported that he was still having pain in the right knee, and was not able to run or jump.  PE of the right knee revealed no swelling, no effusion, and no crepitus.  There was some tenderness to deep palpation.  ROM testing showed flexion to 130 degrees, and there was pain with motion.  Strength was decreased (4 out of 5) in the right quadriceps muscle.  The examiner documented mild quadriceps atrophy, mild weakness, and mild lack of endurance.

The Board directed its attention to its rating recommendation based on the above evidence.  The Navy PEB and the VA chose different coding and rating options for the torn meniscus.  The PEB utilized code 5257 (knee, other impairment of) rated at 10% (slight).  The VA used code 5259-5262 (tibia and fibula, impairment) rated at 20%.  The VARD stated that 10% was for painful motion, with another 10% added for additional functional loss due to mild weakness and mild lack of endurance.

The Board deliberated at length with regard to the meniscus tear, and the CI’s level of impairment.  Considerable discussion was centered on the May 2005 C&P exam.  At that exam, there was painful motion, mild quadriceps atrophy, mild weakness, and mild lack of endurance.  Based on the legal ruling from DeLuca v. Brown (1995), the Board must consider any additional functional loss due to factors such as pain, weakened movement, or excess fatigability.  After due deliberation, the Board determined by majority vote, that the CI’s knee impairment was best described as moderate; due to pain, weakened movement, and excess fatigability.  There was not sufficient evidence to justify describing the knee impairment as “severe.”

Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends by majority decision, a disability rating of 20% for the meniscus tear condition.  It is appropriately coded 5299-5257, and meets criteria for a 20% rating due to moderate knee impairment, IAW VASRD §4.40, §4.45, §4.59, §4.71a, and the legal ruling from DeLuca v. Brown (1995).

Other PEB Conditions.  As noted above, two right knee conditions (chondromalacia patella and patellar tendonitis) were found by the PEB to be Category III (not separately unfitting, and not contributing to the unfitting condition).  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Both of these other knee conditions were investigated by the action officer, and considered by the Board.

After a thorough review of the record, the Board did not find sufficient evidence that either of these other two conditions, separately, caused significant interference with satisfactory performance of military duties.  The Board determined that they were indeed Category III (not separately unfitting, and not contributing to the unfitting condition).  The Board also determined the right knee patella “pain” symptom was already factored into the right knee meniscus tear rating criteria and if reapplied would be considered “pyramiding.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.14 (avoidance of pyramiding), the Board found insufficient cause to recommend a change in the PEB adjudication for either of these other right 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 meniscus tear condition, the Board recommends by majority vote, a disability rating of 20%, coded 5299-5257 IAW VASRD §4.40, §4.45, §4.59, §4.71a, and the legal ruling from DeLuca v. Brown (1995).  In the matter of the chondromalacia patella and patellar tendonitis conditions 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 the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Lateral Meniscus Tear, Right Knee	5299-5257	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140522, 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 31 Aug 15 ICO XXXXXXXXXXXXXXX
      (c) PDBR ltr dtd 16 Jul 13 ICO XXXXXXXXXXXXXXX
	 (d) PDBR ltr dtd 31 Aug 15 ICO XXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 28 Aug 15 ICO XXXXXXXXXXXXXXX
	 (f) PDBR ltr dtd 31 Aug 15 ICO XXXXXXXXXXXXXXX

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

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

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

     b. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge (9 Jun 2002). ****

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

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

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

****This case was previously adjudicated on 27 Aug 2013.  That decision erroneously listed the PDRL date as 2009 vice 2002.  Correction is now required to ensure service member receives appropriate compensation.

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.