RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02566
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20060115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Mortarman, medically separated for “right patella malalignment status post arthroscopic lateral release” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  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 - 20051118	VARD - 20061211	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Patella Malalignment	5299-5003	10%	Right Patella Malalignment	5299-5260	0%	STR	
Bilateral Knee Pain	Category II	Left Knee Patellofemoral Syndrome	5260	0%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:

Right and Left Knee Pain.  The earliest service treatment records (STR) entry for bilateral knee pain took place in May 2003 followed by a complaint of right knee pain in September 2003 after a march/run.  Conservative bilateral knee treatment was rendered by primary care, orthopedics (sports medicine) and physical therapy.  The CI received right knee arthroscopic surgery (lateral patella release) in August 2004.  Diagnostic study (MRI) was unremarkable.  Radiographic imagining (X-ray) showed appropriate patella alignment.  Treatment did not result in sufficient improvement to allow unrestricted duty.

The MEB NARSUM examination on 28 September 2005, 4 months prior to separation, noted complaints of bilateral knee pain with the right knee being more symptomatic than the left; exacerbated by stairs and prolonged standing.  Physical examination revealed right knee patellar facets tenderness.  Bilateral motor strength was 5/5 without instability or meniscus impairment.  Bilateral range of motion (ROM) was extension 0 to flexion 135 degrees (normal 0 to 140); painful motion was not addressed.

There was no VA examination proximate to separation for the panel to review.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10%, analogously coded 5299-5003 (degenerative arthritis) and determined bilateral knees were category II.  The VA rated the right and left knee conditions 0% each, analogously coded 5299-5260 (leg, limitation of flexion) and 5260, respectfully, based on the CI’s STR, citing no compensable limitation of motion.

The PEB determined the right knee unfitting and bilateral knees as category II (conditions that contribute to the unfitting condition).  The panel’s initial charge in this case was therefore directed at determining if the PEB’s category II designation was justified in lieu of unfitting bundled or separate knee ratings.  When considering a separate rating for each condition, the panel considers the category II condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates that it alone would not have caused 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 limited duty report dated 12 September 2005, 3 months before separation, identified bilateral patellofemoral pain syndrome as the condition causing the CI’s limited duty.  The non-medical assessment (commander’s performance statement), on 13 October 2005, 3 months before separation, implicated the CI’s “knee problems” that rendered the CI unable to perform his mortarman duties.

The panel majority agreed the permanent bilateral knee L3 profiles, chronic bilateral knee pathology and chronic clinical acuity for each knee were similarly impairing.  There was no evidence that one knee caused more functional impairment than the other.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled right and left knee conditions were reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right and left knee conditions at the time of separation.

A bilateral 10% rating under the provisions of 5003 was considered, but the panel concluded that the totality of the STR evidence provided sufficient evidence for painful motion of each knee supporting a 10% rating for each knee (based on §4.59, §4.40 and §4.45).  The panel agreed there was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  There was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was therefore no VASRD §4.71a route to a rating higher than 10% for each knee.  After due deliberation, considering all of the evidence, and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for each knee, analogously coded 5099-5003.

PANEL FINDINGS:  In the matter of the right knee pain condition, the panel unanimously recommends that each knee be separately adjudicated as follows:  an unfitting right knee condition analogously coded 5099-5003 and rated 10%, and an unfitting left knee condition, analogously coded 5099-5003 and rated 10%, both IAW VASRD §4.71a.  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:

CONDITION	VASRD CODE	PERMANENT RATING	
Right Knee Pain	5099-5003	10%	
Left Knee Pains	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150920, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 22 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(l) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(m) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(n) PDBR ltr dtd 21 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(o) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (o) are approved.  The official records of the following individuals are to be corrected as follows:

     a. XXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

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

     d. XXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     e. XXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge. 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

     g. XXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     h. XXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     i. XXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.

     j. XXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     k. XXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     l. XXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

     m. XXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

     n. XXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.
     
3.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

	XXXXXXXXXXXXXXXXXXX
	Acting