RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01196
BRANCH OF SERVICE:  Navy	SEPARATION DATE:  20040806

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Operations Specialist, medically separated for “status post (s/p) bilateral knee Fulkerson procedures (distal tibial tubercle realignment)” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  No specific contention was made.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040621	VARD - 20040910	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P  Bilateral Knee Fulkerson Procedure	5099-5003	10%	Residual Right Knee…	5010-5260	10%	20040727	
		10%	Residual Left Knee…	5010-5260	10%		
Bilateral Patellar Subluxation 	Cat II	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

S/P Bilateral Knee Fulkerson Procedure.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent right knee surgery for recurrent patellar instability (Fulkerson distal tibial alignment) in October 2003 and left knee surgery for the same diagnosis on 26 March 2004.  Post operatively the right knee healed very well and she obtained excellent patellofemoral joint stability, but she continued to report right knee pain with ladders and stairs.  It was noted in the NARSUM examination conducted just 6 weeks after the left knee surgery that she had no further instability of the patellofemoral joint and was healing and progressing well; she was weight bearing on the left as tolerated.   Each knee is presented in a separate narrative below.

Right Knee.  During a physical therapy (PT) examination on 11 May 2004, the CI reported that after her right knee surgery there was less popping but it gave out if she went too fast.  Physical examination showed an antalgic gait and mild swelling.  Range of motion (ROM) was extension to 0 degrees (normal) and flexion to 130 degrees (normal 140); painful motion was not addressed.  The 11 May 2004 MEB NARSUM examination noted complaints of right knee pain.  Physical examination revealed no patellar instability or tenderness.  Right knee ROM was extension to 0 degrees and flexion to 120 degrees; painful motion was not addressed.  

At the 27 July 2004 VA Compensation and Pension (C&P) general examination, less than one month before separation, the CI reported right knee cap pain, swelling and a little bit of instability, better than prior to surgery.  Physical examination showed a generally normal gait.  There was knee swelling and positive patellar grind, but no patellar instability.  There was crepitus behind the kneecap but no evidence of meniscal pathology or instability.  Knee extension was normal with flexion to 150 degrees; painful motion was not addressed.  Right knee X-rays showed mild arthritis.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10%, analogously coded 5099-5003 (arthritis, degenerative).  The Navy PEB also listed bilateral patellar subluxation as a related Category II condition that contributed to the primary unfitting condition, but was not separately ratable.  The panel noted there was no evidence of persistent patellar instability of either knee noted after surgery at the MEB NARSUM or VA examinations, and concluded the Category II condition was properly subsumed under the rating for the Category I condition IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The VA rated the right knee condition 10%, dual-coded 5010-5260 (arthritis due to trauma-leg, limitation of flexion), based on the C&P examination, citing painful motion and crepitus.  

There was evidence of painful motion of the right knee with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) coded analogously to 5260.  The panel considered alternative VASRD knee and analogous codes, but all were less applicable and/or not advantageous to rating.  The panel deliberations arrived at a rating recommendation with a different code than the PEB, however, since there is no ratings benefit to the CI, no change to the PEB’s coding choice is recommended.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the right knee condition.  

Left Knee.  During the PT examination on 11 May 2004 physical examination showed an antalgic gait and mild swelling.  Left knee extension was to 5 degrees with flexion to 100 degrees; painful motion was not addressed.  During the 11 May 2004 MEB NARSUM examination the physical examination revealed trace knee swelling without tenderness.  The patella femoral joint was stable.  Left knee ROM was extension to 0 degrees and flexion to 110 degrees; painful motion was not addressed.  Left knee X-rays showed a healing surgical (osteotomy) site with intact surgical hardware. 

At the 27 July 2004 C&P general examination the CI reported knee cap pain, swelling and a little bit of instability, better than prior to surgery.  Physical examination showed a normal gait.  There was knee swelling and patellar grind, but no patellar instability.  There was crepitus behind the kneecap but no evidence of meniscal pathology or instability.  Knee extension was to 0 degrees with flexion to 150 degrees; painful motion was not addressed.  Left knee X-rays showed mild arthritis.  The VA examiner noted ongoing left knee discomfort slightly greater than the right, with difficulty with stairs, repetitive motion and prolonged walking.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition 10%, analogously coded 5099-5003 (arthritis, degenerative).  As noted above the Category II condition of bilateral patellar instability referred to the same disability as the Category I condition and could not be separately rated.  The VA rated the left knee condition 10%, dual-coded 5010-5260 (arthritis due to trauma-leg, limitation of flexion), based on the C&P examination, citing painful motion and crepitus.  

There was evidence of painful motion of the left knee with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) coded analogously to 5260.  The panel considered alternative VASRD knee and analogous codes, but all were less applicable and/or not advantageous to rating.  As noted previously, the panel’s rating recommendation under 5299-5260 provides no ratings benefit to the CI so no change to the PEB coding choice is recommended.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the left knee condition.  

BOARD FINDINGS:  In the matter of the right and left knee conditions and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudications.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends 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 20160928, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs 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 USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- 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
	     				                        Assistant General Counsel
						        (Manpower and Reserve Affairs)