RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00031
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20070215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, M1A1 Tank Crewman, medically separated for “bilateral knee pain” with a disability rating of 10%.  

CI CONTENTION:  “Please consider all conditions.”  The CI’s 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 based upon a 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 - 20061130	VARD - 20080222	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	Residuals, Status Post Medial Meniscal Repair, Right Knee	5260-5259	10%	20080131	
Left Knee Lateral Patella Compression Syndrome with Patellofemoral Dysfunction	Cat II	Patellofemoral Syndrome, Left Knee, Status Post Medial Femoral Condyle Chondroplasty and Plica Excision	5260-5259	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Bilateral Knee.  The PEB combined the right knee and left knee conditions as a single unfitting condition coded 5099-5003 and rated 10%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the right knee and left knee conditions are presented together.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral knee condition began in January 2005 without specific injury or trauma.  A follow-on magnetic resonance imaging (MRI) study showed meniscal pathology in both knees.  The CI underwent a right knee arthroscopy and partial meniscectomies.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “pain in joint involving lower leg” for PEB adjudication.  

The MEB NARSUM examination on 19 October 2006, 3 months prior to separation, noted complaints of continued bilateral knee pain left greater than right.  The physical examination showed relatively stable knees with mild tenderness, painful motion and no effusion.  The range of motion (ROM) was noted as flexion left to 135 degrees (normal 140), right 140 degrees and extension on the left of 0 degrees (normal) and right to-5 degrees. At the 01 January 2008 VA Compensation and Pension (C&P) evaluation, performed 11 months after separation, the CI reported increased pain and using Motrin for pain relief.  The physical examination showed tenderness and pain with repetitive motion of both knees without gait.  The ROM was noted as flexion left/right to 124 degrees (normal 140).

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right knee with the left knee condition and applied a single 10% rating coded 5099-5003 (arthritis, degenerative).  The PEB also listed “Left Knee Lateral Patella Compression Syndrome with Patellofemoral Dysfunction” as a related Category II condition (a condition that contributed to the primary unfitting condition but was not separately ratable).  The impairment from the left knee was properly subsumed under the overall rating for the [Cat I unfitting condition] IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The VA rated the bilateral knee condition 10% analogously coded 5260-5259 (cartilage, semilunar, removal of, symptomatic), based on the VA C&P examination 11 months after separation, citing 124 degrees of flexion, tenderness and pain.  The VA also rated 10% analogously coded 5260-5259 (cartilage, semilunar, removal of, symptomatic), citing medial meniscal repair of the right knee.  As noted above, there are no distinctions with regards to clinical features or fitness considerations between the right and left knee.  The Board noted that the CI underwent a right partial meniscectomy, the removal of degenerative cartilage on the left.  Despite this, both of the CI’s knees showed painful motion, and bilateral non-compensable limitation of motion.  Board members agreed that the evidence supports each knee to be reasonably justified unfitting, with a rating of 10% for each knee, coded 5260-5269 for the right and 5099-5003 for the left.  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 right knee and 10% for the left knee.  

BOARD FINDINGS:  In the matter of the bilateral knee condition, the Board unanimously recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5260-5259 rated 10%, and an unfitting left knee condition coded 5099-5003 rated 10%, both IAW VASRD §4.71a.  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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Knee Pain	5260-5259	10%	
Left Knee Pain	5099-5003	10%	
COMBINED w B/F	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140805, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXX   
	(c) PDBR ltr dtd 22 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 21 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 21 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 4 Oct 16 ICO  XXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

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

     c. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by assignment to the Permanent Disability Retired List with a final disability rating of 30 percent (increased from 10 percent).  

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

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.   

     e. XXXXXXXXXXXXXXXXXX, former USMC: An increase in disability rating from 30 percent to 60 percent for the period on the Temporary Disability Retired List followed by a final disability rating of 20 percent with entitlement to disability severance pay.

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

     f. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective 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.

	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)