RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02477
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150626
SEPARATION DATE:  20040620

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aviation Electronics Technician) medically separated for bilateral knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was referred for a Medical Evaluation Board (MEB).  The “chondromalacia of patella” and “postsurgical status” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition (displacement of lumbar intervertebral disc without myelopathy) for PEB adjudication.  The Informal PEB adjudicated his post-surgical left and right knees as unfitting and rated each of them at 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be Category III (herniated nucleus pulposus [HNP] at L4/5 and L5-S1 levels).  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 20040421	VA* - (~3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Chondromalacia of Patella…	5099-5003	10%	Left Knee Patellofemoral Chondromalacia…	5024	0%	20040309	
	5099-5003	10%	Right Knee Patellofemoral Chondromalacia…	5024	0%	20040309	
HNP at L4/5 and L5-S1 levels	Cat III	Lumbar Strain	5242	10%	20040309	
Other x 0 (Not In Scope)	Other x 5	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20040809 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Bilateral Knee Condition.  The CI experienced a several year history of gradually worsening bilateral knee pain that was not a consequence of acute injury.  Although there were references in the available record to a history of bilateral knee arthroscopies performed by a civilian provider, the details of those procedures (such as dates, operation reports and surgical findings) were absent.  X-rays of each knee were normal.

At an emergency room visit for pain medication on 22 February 2004 (4 months prior to separation), physical examination showed “good range of motion with some crepitus” of the knees.  There was no swelling and all ligaments were intact.

At the VA Compensation and Pension exam on 9 March 2003 (3 months prior to separation) the CI complained of pain that was “constant everyday all day.”  Pain was worsened by running, walking or standing from a seated position.  Symptoms in each knee were the same.  Examination showed a normal gait, bilateral knee crepitus and no knee swelling.  Cruciate ligaments were stable and a sign of meniscal tear was negative.  Knee flexion was 140 degrees (normal 140 degrees) and extension 0 degrees (normal 0 degrees) bilaterally.  Range-of-motion (ROM) was painless, but the exam was silent regarding tenderness.  The examiner rendered a diagnosis of “meniscus tear” for each knee.

At the narrative summary (NARSUM) evaluation on 19 March 2004, the CI indicated that he thought his knee pain was brought on by running and flight line activities.  He complained of pain with stair-climbing and activities of daily living.  Arthroscopic debridement of both knees occurred in 2003 by CI report.  The orthopedic examiner reported that the historical diagnosis was chondromalacia patella.  Physical examination showed bilateral knee crepitus, stable knee ligaments and no evidence of meniscal tears.  A trace knee effusion (swelling) and pain with compression of the kneecap was present bilaterally.  ROM was not measured, but was noted to be “full.”  The examiner rendered a diagnosis of chondromalacia patella.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating for each knee coded analogously to 5003 (degenerative arthritis) with appropriate application of the bilateral factor, while the VA rated each knee at 0%, using the 5024 code (tenosynovitis).  However, in July 2005 the VA increased each knee to 10% effective the day after separation, but the specific rationale was unclear.  Board members agreed that coding and rating features for each knee were logically identical, and that while limitation of motion was not present, the PEB’s 10% ratings were reasonably conceded IAW VASRD §4.40 (functional loss).  The Board considered the 5257 (knee, other impairment of: recurrent subluxation or lateral instability) and 5258 (cartilage, semilunar, dislocated) codes, but concluded there was no clinical evidence to warrant these rating options.  The Board likewise agreed there was no evidence of malunion of the tibia or fibula to support a rating under the 5262 code.  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 right and left knee pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the back condition (HNP at L4-5 and L5-S1) was not unfitting.  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.

Imaging studies in December 2001 to evaluate complaints of back pain found disc protrusions at the L4-L5 and L5-S1 levels.  Evaluation for ongoing pain in July 2003 recorded that pain began 5 years previously, but was worse for 2-3 years.  It was determined that surgery was not indicated.  On 26 December 2003 (6 months prior to separation) the CI presented to the emergency room for “back pain for the past two to three days…this is the pain that he has every few months and it is no different than usual.”  Pain severity was noted to be 2-3/10.  The non-medical assessment (NMA) on 20 February 2004 (4 months prior to separation) specified the painful knee condition, but was silent regarding a back problem.  The NARSUM examiner stated that the back condition was not disqualifying.  On the DD Form 2808, Report of Medical Examination, on 4 March 2004, the MEB examiner indicated that the CI was not qualified for service “per ortho eval” for chronic low back pain.  The examiner made no mention of the knee condition.

The back condition did not carry an attached LIMDU, and was not implicated in the NMA or judged to fail retention standards.  Although the MEB examiner made a statement that an orthopedic evaluation deemed the back condition to be disqualifying, the Board judged that this examiner made a mistake, since no orthopedist rendered that conclusion.  There was no performance based evidence from the record that this condition 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 contended condition and so no additional disability rating is recommended.

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 chondromalacia of patella condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended HNP at L4-5 and L5-S1 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.

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 20140529, 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 29 Sep 15

      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 USMC
- XXXXXXXXXXXXXXX, former USN