RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03185
BRANCH OF SERVICE:  NAVY	date of SEPARATION DATE:  20050630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty O-3, Aviator, medically separated for “chondromalacia patella, bilateral,” rated at 10%. 

CI CONTENTION:  The CI’s attorney submitted a petition for relief with enclosures.  Her 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 - 20050128	VARD - 20080220    	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chondromalacia Patella, Bilateral	5299-5003	10%	No VA Placement	
S/P Left Knee Chondroplasty and Lateral Retinacular Release	Cat II	S/P Left Knee Chondroplasty and Lateral Retinacular Release with Surgical Scars	5257	30%	20071016	
Right Knee with Degenerative Changes involving the Anterior Horn of the Lateral Meniscus	Cat II	Right Knee Strain with Degenerative Changes, Lateral Meniscus	5257	30%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Bilateral Chondromalacia Patella Conditions.  An early note in the service treatment record dated 27 April 1998 indicated the CI complained of bilateral knee pain, the left greater than the right, for 1 week when walking up stairs.  On examination she had tenderness to palpation over the patellar (kneecap) tendons, a full range-of-motion (ROM), negative Lachman’s and drawer tests (to determine instability) and a negative McMurray’s test (to determine a meniscal tear).  Treatment consisted of Naprosyn (naproxen, a nonsteroidal anti-inflammatory drug (NSAID)) and ice topically.  In December 2000 the CI was evaluated by a physical therapist for possible bilateral PFS (patellofemoral syndrome) at which time she had a full range of motion (ROM) bilaterally and negative knee laxity; physical therapy then was instituted.  MRIs performed on 11 April 2001 demonstrated mild patella alta (an elevated kneecap) without internal derangement of the right knee and mild patella alta with a lateral patellar tilt and a lateral patellar facet bone bruise of the left knee.  In June 2001 the CI was evaluated for a painful left knee and a right ankle injury.  She was diagnosed with patella alta of the left knee with a lateral PF (patellofemoral) syndrome and had a symptomatic medial synovial plica (extension of the synovial membrane surrounding the joint) and grade I-II MC (medial collateral) and I-II AC (anterior cruciate) laxity.  There were no signs of medial or lateral meniscal tears.  She was seen in consultation by an orthopedic surgeon on 25 July 2001 who found her left knee without an effusion, with a full ROM, stable medially and laterally with a normal Lachman’s test and a negative drawer sign.  She did have some discomfort with patellofemoral compression.  A surgical option for arthroscopic lateral retinacular release (to relieve medial knee pain) of the left knee was considered to be elective; nevertheless, she was still physically qualified as a naval aviator.  On 17 September 2001, the CI underwent diagnostic arthroscopy of the left knee where MC and AC laxity were noted and a chondroplasty of Grade II/IV patellofemoral degenerative joint disease, a lateral PF release, and shaving of medial and lateral meniscal tears procedures were performed.  Despite postoperative physical therapy the CI was unable to run or climb stairs in April 2002.  Examination of the left knee revealed 30 percent atrophy of the quadriceps and 40% atrophy of the VMO [vastus medialis oblique] muscle compared to the right; a muscle stimulator was requested along with further strengthening exercises of the quadriceps.  An MRI in March 2003 of the left knee demonstrated mild to moderate degenerative change involving the patellofemoral joint with a small effusion.  The cruciate and collateral ligaments were intact and there was no sign of a meniscal tear.  Swelling of the right knee was noted in April 2004 and X-rays of both knees was normal.  In May 2004 an MRI of the left knee was suspicious for chondromalacia (damage to the cartilage under the knee cap), while an MRI of the right knee was suspicious for chondromalacia; and, there was a questionable tear involving the anterior horn of the medial meniscus.  Orthopedic evaluation in May 2004 noted the CI had intermittent and very sharp pain in the right knee up to 8/10 and the left knee pain was more dull and constant with more swelling of the left knee.  She had no locking, catching, or instability.  On examination of the right knee there was no effusion, a full ROM, positive PF crepitus with tenderness of the medial and lateral facets of the patella, a positive grind test and no instability.  Examination of the left knee revealed no effusion, a full ROM, a positive PF grind test, and no instability.  Treatment recommendations included physical therapy, consideration of arthroscopy to evaluate the possible right meniscal tear, and anti-inflammatory medication.  The CI tried regenerative (growth hormone) injections into the affected area in June 2004. Orthopedic evaluation in June 2004 revealed a normal gait and her ROMs were normal.  She had no quadriceps atrophy and no effusions.  On the right PF examination there a 0 tilt (patellar movement), two quadrant glide laterally and a three quadrant glide medially, no crepitation, no lateral or medial fact tenderness and no apprehension, while on the left she had a +10 tilt, a two quadrant glide, a 3+ medial patellar glide, no crepitation, and no apprehension.  Ligamentous examination was completely normal.  The orthopedic surgeon opined the CI had patellofemoral chondromalacia bilaterally and on the right she had a medial meniscal tear as evidenced by both examination and an MRI.  A second orthopedic surgeon noted a tight retinaculum on both knees, a 5 to 10cc effusion, crepitus more on the left than the right, and stable ligaments.  Synvisc (a joint lubricant) injections were recommended.  If there were no positive results, arthroscopy was to be considered.  Physical therapy was carried out from June to August 2004.  A note dated 4 August 2004 indicated the CI had decreased swelling and an increased exercise tolerance; and, NSAID use decreased significantly after receiving the regenerative injections.  However, she still had occasional locking and sharp pain from the meniscal tear.  X-rays in August 2004 noted no acute bone or joint pathology and PF articulation appeared unremarkable.  A document from the CI’s Flight Surgeon indicated she was placed in a NPQ status and was found to be unfit for her duties as a Naval Aviator.  She was unable to participate in a physical fitness test, was not ship deployable, and could no longer preflight a helicopter.  He noted that her condition worsened over the prior three years, and “her condition will only worsen.”  Patellar tape and a left knee brace were requested to relieve the CI’s pain in January 2005.  

The Medical Evaluation Board (MEB) narrative summary (NARSUM) dated 3 September 2004 was performed by an orthopedic surgeon, who noted the CI had not been able to run a PRT (physical readiness test) for the prior 3 years; however, she had been on flight status until shortly before the NARSUM preparation.  She noted that “she had no problem actually flying.”  Physical examination of her left knee revealed evidence of previous arthroscopy with healed ports.  Both knees had full ROMs, no effusions and no quadriceps atrophy; and both knees were stable medially and laterally.  Lachman’s and McMurray’s tests were negative bilaterally; and, there was pain with PF compression on the left knee.  An MRI of the left knee in May 2004 showed changes consistent with chondromalacia and an MRI of the right knee revealed changes consistent with chondromalacia and degeneration of the anterior horn of the medial meniscus without a frank tear.  As a result the CI was unable to run and developed effusions with strenuous physical activity.

The CI had a flight physical/separation physical on 16 June 2004 at which time she noted on DD Form 2697 she had “serious pain and swelling in the knees, had multiple orthopedic visits for knee pain, and “couldn’t take the ladders on a ship, my knees would hurt too much.”  The physical examiner did not note any details related to the CI knees on Standard Form 88.  The CI was placed on LIMDU on 23 August 2004 and it was noted her condition was aggravated by motions that involved impact and pressure to her knees, i.e. running or climbing.  The non-medical assessment indicated as her knees continued to degenerate, she had difficulty preflighting the aircraft hub and tail rotor, but she had not permitted her physical limitation to impede her performance as a pilot.

At the remote VA Compensation and Pension (C&P) examination dated 16 October 2007, performed 27 months after separation, the CI reported the condition existed since 2000 and she had weakness, stiffness, swelling, giving way, lack of endurance, and fatigability.  She did not have locking and dislocation.  The pain was crushing and aching with a pain level of 10/10 and she required bed rest.  Treatment consisted of Motrin (ibuprofen, an NSAID) and home physical therapy.  She indicated she could not climb stairs, stand for longer than 15 minutes, or live a normal life.  Examination of both knees revealed guarding of movement.  There was no edema, effusion, weakness, tenderness, redness, heat and subluxation, but there was locking pain, but no genu recurvatum and crepitus.  The ROM measurements were 140 degrees for flexion and 0 degrees extension for each knee.  On the left and right joint function was limited on repetition by pain, fatigue, weakness, lack of endurance, incoordination, and pain had the major functional impact, but the limit was 0 degrees.  The examiner also reported the anterior and posterior cruciate ligaments stability tests of both knees were abnormal with severe instability; and, the medial and lateral collateral ligament stability tests of both knees were abnormal with severe instability.  The CI’s gait and posture were within normal limits and she used orthotic inserts for ambulation and a knee brace to stabilize the patella.  Post-separation X-rays of the right and left knees was negative.  

A remote post-separation MRI of the left knee dated 3 August 2011 showed an interval increase in size of a full-thickness cartilage defect at the patellar apex (lowest part of the kneecap) and degenerative chondrosis (cartilage deterioration) at the lateral patellar facet as well as a full-thickness cartilage defect in the posterior lateral tibial plateau.  The cruciate, medial and lateral collateral ligaments were intact.  A remote MRI of the right knee dated 24 October 2011 demonstrated intact cruciate and collateral ligaments and mild localized inflammatory changes in Hoffa’s fat pad and no MRI evidence of internal derangement in the right knee. 
The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Knee ROM
(Degrees)	Ortho ~13 Mos. Pre-Sep
	Ortho ~12 Mos. Pre-Sep
	MEB ~10 Mos. Pre-Sep
	
	Left	Right	Left	Right	Left	Right	
Flexion (140 Normal)	Full Range of Motion	Full Range of Motion	125	125	Full Range of Motion	Full Range of Motion	
Extension (0 Normal)			0	0			
§4.71a Rating	-	-	0%	0%	PEB 10%	

The Board directed attention to its rating recommendation based on the above evidence.  The Formal PEB (FPEB) assigned a 10% rating using code 5299-5003 (degenerative arthritis) for the Category I unfitting conditions bilateral chondromalacia patella.  The FPEB also determined Category II (conditions that contribute to the unfitting conditions) to be status post left knee chondroplasty and lateral retinacular release and right knee with degenerative changes involving the anterior horn of the lateral meniscus.  The VA, based on a remote contract examination dated 16 October 2007, 27 months post-separation, assigned a 30% rating using code 5257 for status post left knee chondroplasty and lateral retinacular release with surgical scars and a 30% rating using code 5257 for right knee strain with degenerative changes, lateral meniscus.  

Board Approach to PEB Consolidated Rating.  The PEB combined the bilateral chondromalacia patella conditions under a single disability rating, coded analogously to 5003 (Degenerative Arthritis).  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for rating.  The Board’s initial charge in this case was directed at determining whether the PEB’s combined adjudication was justified in lieu of separate ratings.  The evidence for each condition was presented above.  If Board members determine by performance based fitness criteria that the condition is reasonably justified as separately unfitting and is separately ratable, then IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended.  IAW DoDI 6040.44 the combined rating for the conditions determined to be separately unfitting and ratable may not be lower than the single disability rating from the PEB.  

In this case, both knees were profiled, considered to fail retention standards, and implicated by the NARSUM and in the non-medical assessment.  Board members agreed that each knee based on the clinical evidence and fitness performance criteria was reasonably justified as separately unfitting and an individual coding and rating is applicable for each knee.  

The Board first addressed the Category I condition chondromalacia patella of the left knee and noted the FPEB considered the Category II condition status post left knee chondroplasty and lateral retinacular release contributed to the Category I condition.  The Board discussed the left knee condition disability and agreed that while the CI had chondromalacia, the chondroplasty and lateral retinacular release did not exactly contribute to the chondromalacia; the procedures were performed to smooth degenerative cartilage, repair meniscal tears, and relieve patellar pain.  Therefore, for rating purposes the Board considered code 5099-5003 with a 10% rating as reasonable in view of the noncompensable ROM of the left knee and also considered code 5259 (removal of semilunar cartilage) at 10% as well.  However, there was insufficient evidence to support the use of code 5258 (dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion).  The Board took note of the remote VA examination and its assignment of a 30% using code 5257 (severe knee impairment with recurrent subluxation or lateral instability).  Not only was the VA examination beyond the look forward of 12 months post-separation, which is required IAW DoDI 6040.44, but the findings were incongruous with clinical findings of orthopedic surgeons proximate to separation with the exception of the left knee pre-operative and intraoperative findings in 2001, which were reported to show Grade I/II ACL and MCL laxity.  However, MRI findings both prior to and after separation, which showed intact cruciate and collateral ligaments, are not supportive of the VA examination findings.  Furthermore, the record did not provide evidence such as, but not limited to, trauma, surgery, or infection to explain the marked difference in clinical examinations pre-separation and post-separation.  A higher rating than 10% is inapplicable for the left knee in the absence of ankylosis, confirmed, reproducible recurrent subluxation or lateral instability, a greater limitation of flexion or extension, tibia and fibula impairment or genu recurvatum prior to separation.  Pyramiding IAW VASRD §4.14 (evaluation of the same disability under various diagnoses) is to be avoided; therefore, coding for both chondromalacia and the repaired meniscal tears, albeit the knee remained symptomatic, cannot be done.  However, while A VA Counsel General opinion dated 1 July 1997 permits instability (5257) to be combined with arthritis (5003), the Board determined that based on the proximate pre-separation examinations, a separate rating for instability is not warranted.   

The Board then addressed the Category I condition chondromalacia patella of the right knee and noted the FPEB considered the Category II condition degenerative changes involving the anterior horn of the lateral meniscus contributed to the Category I condition.  The Board discussed the right knee condition disability and agreed that while the CI had chondromalacia, the degenerative changes involving the anterior horn of the lateral meniscus did not exactly contribute to the chondromalacia; the degenerative changes of the meniscus were additional, but separate findings that contributed to the CI’s overall right knee pain.  Therefore, for rating purposes the Board considered code 5099-5003 with a 10% rating as reasonable in view of the noncompensable ROM of the right knee.  There was also evidence to support a rating of 20% by the use of code 5258 (dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion) as well.  The Board took note of the remote VA examination and rating of 30% using code 5257 (severe knee impairment with recurrent subluxation or lateral instability).  Not only was the VA examination beyond the look forward of 12 months post-separation IAW DoDI 6040.44, but the findings were incongruous with clinical findings of orthopedic surgeons proximate to separation as well as MRI findings both prior to and post-separation that showed intact cruciate and collateral ligaments.  Furthermore, the record did not provide evidence such as, but not limited to, trauma, surgery, or infection to explain the marked difference in clinical examinations pre-separation and post-separation.  Higher ratings than 20% are inapplicable for the right knee in the absence of ankylosis, confirmed, reproducible recurrent subluxation or lateral instability, limited flexion or extension, tibia and fibula impairment or genu recurvatum prior to separation.  Pyramiding IAW VASRD §4.14 (evaluation of the same disability under various diagnoses) is to be avoided; therefore, coding for painful right knee with chondromalacia and the symptomatic meniscal condition cannot be done.  However, while A VA Counsel General opinion dated 1 July 1997 permits instability (5257) to be combined with arthritis (5003), the Board determined that based on the most proximate pre-separation examinations, a separate rating for instability is not warranted.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the re-designated Category I left knee chondromalacia patella status post chondroplasty, meniscal repairs, and lateral retinacular release, which the Board determined includes the former Category II condition that was and is an integral component of the Category I condition in actuality and for rating purposes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the re-designated Category I right knee chondromalacia patella with degenerative changes involving the anterior horn of the lateral meniscus, which the Board determined includes the Category II condition that was and is an integral component of the Category I condition in actuality and for rating purposes.  

BOARD FINDINGS:  In the matter of the Category I left knee chondromalacia patella status post left knee chondroplasty, meniscal repairs, and lateral retinacular release condition, the Board unanimously recommends a disability rating of 10%, coded 5259 IAW VASRD §4.71a.  In the matter of the Category I right knee chondromalacia patella with degenerative changes involving the anterior horn of the lateral meniscus condition, the Board unanimously recommends a disability rating of 20%, coded 5258 IAW VASRD §4.71a.  In the matter of the Category II status post left knee chondroplasty and lateral retinacular release and the right knee with degenerative changes involving the anterior horn of the lateral meniscus, the Board subsumed them into the re-designated left knee and right knee re-designated Category I conditions.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:  

CONDITION	VASRD CODE	RATING	
Left Knee Chondromalacia Patella Status Post Left Knee Chondroplasty, Meniscal Repairs, and Lateral Retinacular Release Condition	5259	10%	
Right Knee Chondromalacia Patella with Degenerative Changes Involving the Anterior Horn of the Lateral Meniscus	5258	20%	
RATING (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140705, 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 21 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX 
	(c) PDBR ltr dtd 03 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 24 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 17 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 15 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 13 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 13 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 15 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX
	(l) PDBR ltr dtd 22 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (l) are approved.

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

     a. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effect date of discharge. 

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effect date of discharge. 
 
     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
     
     d. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 10 percent) effect date of discharge. 
 
     f. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge. 

     g. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     h. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     i. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     j. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effect date of discharge.

     k. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

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.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)