RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02399
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20041006  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SR/E-1 (Seaman Recruit) medically separated for a bilateral knee conditions which could not be adequately rehabilitated to meet the physical requirements of her Rating.  She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The diagnoses “bilateral medial tibial plateau stress fractures” and “bilateral medical femoral condyle stress fractures” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted.  The Informal PEB adjudicated “bilateral medial femoral condyle stress fractures” as unfitting, rated 20%, but specifying 10% for each extremity under separate codes and accommodating the bilateral factor.  The IPEB adjudicated “bilateral medial tibial plateau stress fractures” as Category II (condition that contributes to the unfitting condition).  

CI CONTENTION:  “Please consider all 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 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 Veterans Affairs Schedule for Rating Disabilities 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 20040420	VA* - (~5 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Medial Femoral Condyle Stress Fractures (assumed Right)	5255-5003	10%	Right ... Condyle and ... Tibial Plateau Stress Fractures	5255-5262	20%	20040504	
Bilateral Medial Femoral Condyle Stress Fractures (assumed Left)	5255-5003	10%	Left ... Condyle and ... Tibial Plateau Stress Fractures	5255-5262	20%	20040504	
Bilateral Medial Tibial Plateau Stress Fractures	Category 2	Subsumed with Separate Joint Ratings	20040504	
Other x 0 (Not In Scope)	Other x 3 	
RATING:  20%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20041103 (most proximate to date of separation [DOS]).  
ANALYSIS SUMMARY:  

Bilateral Knee Conditions.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an atraumatic onset of bilateral knee pain in basic training (January 2004, 8 months pre-separation), associated with running and marching.  The pain persisted with the rigors of training and a bone scan suggested the presence of the bilateral stress fractures as identified in the summary.  The CI entered physical therapy for rehabilitation a week after onset, and was placed on light duty (remaining in this status until separation).  There are STR entries noting grossly normal range-of-motion (ROM), and one with measured bilateral flexion to 130 degrees (normal 140, minimum compensable 45).  There are STR entries documenting the absence of subjective locking or instability, the absence of effusion, and the absence of ligamental laxity to stress testing or signs of impingement.  There is no STR evidence for more significant ROM limitation, gait disturbance, persistent effusions, locking, instability, or periods of incapacitation. 

The NARSUM was conducted 17 March 2004 (6 months pre-separation) and documented bilateral knee pain rated 3/10 with an inability “to run for greater than 1/4 mile, or walk or stand for a prolonged period of time without leg pain.”  The NARSUM physical examination recorded an “intact heel, toe and tandem gait,” although the examiner later noted that “her unsteady gait may pose a danger to herself or others.”  The examiner also documented (bilateral) tenderness, the absence of effusion, ligamental stability in all planes, and no impingement (negative McMurray’s).  The NARSUM measured ROM was bilateral flexion to 130 degrees.  The examiner noted that the CI had “progressed slowly” and was unable to “fulfill the mandated physical requirements of Boot Camp;” opining that “It will likely take six months to one year for the patient's injuries to heal and restore her physical condition to a level compatible with military service.”  The commander’s non-medical assessment (5 months pre-separation) referenced only inability to perform sit-ups as a specific functional limitation.

A VA Compensation and Pension (C&P) examination was conducted 5 May 2004 (5 months post-separation) and documented “constant” pain “worse with any walking or standing.”  The VA physical examination recorded that the CI “walks hesitantly,” but a VA examiner the previous day (non-orthopedic conditions) recorded “posture is erect and gait is normal.”  The examination documented (bilateral) tenderness, “ligaments are intact,” and “cartilage tests are negative.”  The VA measured ROM was bilateral flexion to 140 degrees, annotating painful motion.  The VA examiner opined “There is moderate lack of endurance and no lack of coordination noted on examination of the knees.”

The Board directed attention to its rating recommendation based on the above evidence.  It is first clarified that the PEB’s Category II condition, being an additional stress fracture involving the same joint, cannot be separately rated without pyramiding (VASRD §4.14); thus, it is appropriately subsumed in the same rating.  The PEB’s de facto separate 10% ratings were under code 5255-5003 (femur impairment rated as degenerative arthritis).  The VA’s separate 20% ratings were under 5255-5262 (tibia and fibula, impairment of).  Both 5255 and 5262 are fracture codes which provide identical ratings for contiguous knee disability:  10% for “slight,” 20% for “moderate,” and 30% for “marked.”  The VA rater cited the C&P examiners assessment of “moderate lack of endurance” along with C&P exam evidence in support of the decision.  There is no evidence for compensable ROM impairment, frequent effusions, or locking which would support a rating higher than 10% under any other code available under VASRD §4.71a, or of joint instability for additional rating; thus, analogous application of either 5255 or 5262 is the only route to a higher rating in this case.  The Board carefully deliberated whether this latter course, as pursued by the VA, was reasonably supported in this case.  

Members considered that the analogous application of a fracture code which rates for non-union or malunion is only tenuously applicable for stress fractures which do not disrupt the integrity or alignment of bones.  It was further noted that, even if the analogous coding is conceded, the assessment of functional impairment as moderate is open to doubt.  There was equivocal, if any, gait disturbance; and, neither the NARSUM examiner, commander, nor VA C&P examiner detailed any significant limitations with mobility or daily activities.  It was arguably only the inability to pursue the rigors of completing basic training (and anticipated protracted recovery time) which rendered the CI unfit; and, there is no evidence of significant impairment of general occupational functioning.  Finally, it must be considered that the CI was not fully recovered at the time of the evidence in this case; and, that this orthopedic condition is not generally associated with significant permanent disability.  The PEB’s decision to separate an injured recruit prior to full recovery, not expected to recover expeditiously or completely enough to finish basic training and meet the rigorous physical demands of military service, was a reasonable one.  The disability rating, if based on functional criteria, should therefore be premised on the projected permanent disability.  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 of the bilateral knee condition.

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 condition 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 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 20140322, 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 8 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 USN 
- XXXXXXXXXXXXXXX, former USN   
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN  
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 

					XXXXXXXXXXXXXXX
	     				Assistant General Counsel
					(Manpower & Reserve Affairs)