RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01280
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20080915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E4, Fire Control Technician Basic Maintainer, medically separated for “chronic bilateral knee pain status post arthroscopy right knee” with a disability rating of 10%.   

CI CONTENTION:  The CI made no specific contention.  The 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 - 20080506	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain 	5099-5003	10%	No VA Claim in Evidence	
Postsurgical State	Category II		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.    The PEB combined the right and left knee conditions under a single service disability rating as elaborated below.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and that there was no need for separate fitness adjudications.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating criteria; and, 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 and left knee conditions are presented together with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI developed an atraumatic onset of bilateral knee pain in early 2006.  Although diagnosed with bilateral patellofemoral pain syndrome, magnetic resonance imaging (MRI) of the right knee suggested a torn meniscus (ligaments intact).  Arthroscopy of the right knee in October 2007 (11 months before separation), however, revealed normal menisci and an incarcerated fat pad that was debrided.  Post-operative notes were more focused on the right knee; and, a pain clinic entry of 7 March 2008 (6 months before separation) stated that the pain was “more in the right knee than in the left knee even though he [states that] sometimes it is bilateral.”  There was no surgical intervention for the left knee.

Post-operative STR entries for the right knee documented recovery of full range of motion (ROM) and a normal gait.  With the exception of the immediate post-operative period, there was ample STR documentation throughout the clinical course of normal or near normal ROM (measured and observed) for both knees.  Two examiners in the post-operative period documented pain at the extremes of motion for both knees, and one specified the absence of painful motion for either knee.  There was ample STR documentation of the absence of instability, mechanical impingement (locking), or persistent effusion for either knee.

The 21 March 2008 NARSUM examination, 6 months prior to separation, documented “daily bilateral knee pain” (no elaboration of separate severity) that precluded running and jumping.  The physical examination (all findings bilateral) recorded tenderness, the absence of effusion or instability, and “full” ROM.  Pain was noted at full flexion on the right, but there was no painful motion on the left.  The second and final Limited Duty board listed “bilateral knee pain,” but the commander’s Non-Medical Assessment referenced only the left knee pain and surgery.  

There was no VA claim, examination, or clinical notes on file; and, there was no other post-separation evidence in this case. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s bilateral rating of 10% under code 5099-5003 (analogous to degenerative arthritis) did not cite a rationale, but was compliant with the 10% criterion of “2 or more major joints” for code 5003 under VASRD §4.71a.  The panel first considered if the bilateral joint condition met the above threshold for separate ratings.  The evidence suggested (although did not firmly establish) that the left knee, in itself, was not reasonably justified as separately unfitting.  The greater acuity and surgical residuals associated with the right knee were arguably the dominant cause for MEB referral; and, although the left knee contributed to the unfitness, it is not clear that it was separately unfitting at the time of separation.  

Furthermore, even if the left knee were conceded as separately unfitting, there was no reasonably defensible criterion for a minimum 10% rating.  There was no evidence for compensable ROM limitation, persistent effusion and locking, instability, or fracture with nonunion or malunion to support a 10% rating for either knee; other than by application of VASRD §4.59 (painful motion).  There was equivocal evidence for painful motion in STR entries leading to separation, and the NARSUM specifically documented the presence of painful motion (albeit at full flexion only) on the right but not on the left.  Members thus agreed or consensus that a concession to separate ratings in this case was not well justified, since the left knee was dubiously unfitting and not subject to a minimum compensable rating regardless.
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded panel consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the bilateral knee condition.

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.

The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150602, 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:

		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
	 	- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC