RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01155
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20020630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Electronic Repair Specialist, medically separated for “bilateral knee pain secondary to patellar insertional tendinitis and tibial tubercle inflammation,” with a disability rating of 10%.  

CI CONTENTION:  “My knee conditions have not improved, but gotten worse actually.  They affect my day to day activities and I have to take anti-inflammatory meds…pain in the knees has gotten worse with time activities.  Stiff, sore, swelling.”  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20020506	VARD – 20030424 and 20040407 (Corrected)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain…	5299-5003	10%	RPPS Left Knee	5299-5260	0%	20030424	
			RPPS Right Knee	5299-5260	0%	20030424	
			Right Tibia Stress Fracture	5252	NSC	20030424	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral knee pain condition began in 2001 of unknown etiology.  X-rays of the knees were negative and Magnetic Resonance Imaging (MRI) was generally normal with findings suggestive of a patellar tracking condition.  There was no surgical indication and conservative treatment including limited duty (LIMDU) and bracing did not sufficiently resolve the CI’s bilateral knee symptoms to allow return to duty.  The MEB forwarded “bilateral knee pain secondary to patellar insertional tendonitis …” for PEB adjudication.  

The MEB NARSUM examination on 11 March 2002, 4 months prior to separation, noted complaints of right knee pain greater than left knee pain.  He denied instability or any neurologic symptoms.  Physical examination showed the CI walked with an antalgic gait.  There was tenderness to the right tibial tubercle greater than the left tibial tubercle and patellar lateral and medial facets.  There was no instability or laxity.  The patella tracked with a J sign (abnormal).  There were no motor or sensory deficits in the lower extremities.  Range of motion (ROM) was symmetric and 0 to 130 degrees (VASRD normal 0-140 degrees).  X-rays of the knees were normal.  MRI showed a question of some chondromalacia bilaterally, and bone scan showed increased activity at his distal patellar tendon at the insertion and of his tibial tubercles.  The diagnosis was “bilateral knee pain secondary to patellar insertional tendonitis and tibial tubercle inflammation.”  

At the 24 April 2003 VA Compensation and Pension (C&P) evaluation, performed 10 months after separation, the CI reported bilateral knee pain with the right often greater than the left.  Pain was 0-4/10 and pain showed up after running about 1.5 miles.  The CI denied any problems with his prior stress fracture of the right tibia.  Physical exam showed normal appearing knees with no pain on palpation.  The CI performed deep knee bends to 150 degrees unassisted.  There was tenderness to palpation on the right shin just distal to the mid-shaft for one inch.  The examiner’s impression was “full active range of motion, normal physical exam.  X-ray negative.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB combined the right knee pain and left knee pain conditions as a single unfitting condition coded analogously to 5003 (arthritis, degenerative) 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.  The panel 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 panel’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 panel 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 panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

The VA rated each knee separately at 0%, using the analogous code 5260 (knee, limitation of flexion of), based on a review of the STR which was corrected to the same rating based on the VA exam 10 months after separation.  The VA originally cited leg flexion limited to 60 degrees with a missed exam, but was corrected to being based on the VA exam citing full ROM without mention of pain on motion and with a negative X-ray.  Right tibia stress fracture was not service connected by the VA citing no diagnosis.  

The panel considered the NARSUM examination as having the highest probative value for rating at separation, and that the more remote VA exam was likely post-separation improvement.  There was NARSUM evidence that the left knee was somewhat improved following LIMDU and that the right knee was the most symptomatic; however, there was not a preponderance of the evidence to adjudge that either knee condition should have been not unfitting.  Therefore each knee was considered separately unfitting and evaluated for separate rating.  

The NARSUM examination documented an antalgic gait without mention of painful motion (IAW VASRD §4.59) of either knee or specification of which knee was favored in the gait.  There was tibial tubercle inflammation, and the panel considered analogous rating under code 5262 (tibia and fibula, impairment of).  The panel majority adjudged that there was not sufficient evidence of painful motion with functional loss supporting a 10% rating (“slight knee or ankle disability,” based on §4.59, §4.40 and §4.45).  There likewise was no limitation of motion which attained a minimum rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  Therefore the panel majority concluded there was not sufficient evidence to support a rating higher than 0% for either knee and no evidence to support a rating higher than the 10% adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knee pain and tibial tubercle inflammation condition.  

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent recommended modification and did not elect to submit a minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150610, 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

      In accordance with reference (a), I have reviewed the cases listed below and 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:

		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC