JAN 1 5 2019
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  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:

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2017-00079
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20070109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Equipment Operator, medically separated for “micro-fractured chondral lesion, lateral femoral condyle of the right knee” with a disability rating of 20%. 

CI CONTENTION:  In addition to the unfitting right knee, the CI also requested review of the left shoulder, ankle and an additional condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20061006	VARD - 20071215	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Micro-Fractured Chondral Lesion, Lateral Femoral Condyle Right Knee	5099-5003	20%	Right Knee Osteoarthritis	5010	10%	20070621	
Osteoarthritis Right Knee	Cat II					
Left Ankle Arthritis	Cat II	Surgical Ligamentous Reattachment, Lateral Left Ankle	5271	10%	20070621	
Left Shoulder Impingement	Cat III	Left Shoulder Impingement 	5099-5019	10%	20070621	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Right Knee.  The PEB listed the “micro-fractured chondral lesion, lateral femoral condyle of the right knee with medial femoral chondral lesion” as an unfitting Category I condition and “osteoarthritis right knee” and “left ankle arthritis, symptomatic” as Category II conditions, that are related to the primary unfitting condition and contribute to the primary unfitting condition.  The panel’s first charge for these PEB Category II conditions is to assess whether either of them can be reasonably justified as separately unfitting for rating consideration.  

The “osteoarthritis right knee” diagnosis was part and parcel of the unfitting right knee condition and could not be reasonably justified as separately unfitting; nor would separate ratings be achievable without pyramiding (VASRD §4.14).  However, the PEB also listed “left ankle arthritis, symptomatic” as a related Category II condition.  In this case the left ankle arthritis was not an aspect of the unfitting right knee condition and is considered reasonably unfit unless a preponderance of evidence shows it is not separately unfit.  

The left ankle condition was not noted on limited duty forms, implicated in the non-medical assessment (NMA), reviewed in the NARSUM or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  The panel concluded there was a preponderance of evidence which showed the left ankle condition was not unfitting at the time of separation and is therefore not separately ratable.  The panel then considered a rating recommendation for the Category I knee condition.

According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent right knee anterior cruciate ligament (ACL) reconstruction in 1991.  He did well until 1997 when he underwent a partial lateral meniscectomy.  He then did fairly well again until March 2005 when he re-injured his right knee playing softball and required another partial lateral meniscectomy and debridement of two chondral lesions (injury of joint cartilage).  During surgery the ACL graft was noted to be intact.  

The 19 June 2006 MEB NARSUM examination, 7 months prior to separation, noted complaints of persistent intermittent right knee pain with long periods of walking.  The CI denied swelling and instability.  Physical examination showed a normal gait without effusion, but there was joint line tenderness.  The range of motion (ROM) evaluation showed flexion of 130 degrees (normal 140) and extension of 0 degrees (normal) with pain on motion.  The knee was stable to varus and valgus stress, but there was 2-3 millimeters of anterior movement with testing for instability (Lachman’s testing).  

During the 28 June 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the examiner recorded significant findings of right knee osteoarthritis and continued chronic pain with decreased function and instability.  Physical examination showed right knee pain with ambulation, but no laxity, weakness or tenderness.

At the 21 June 2007 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported right knee weakness, stiffness, swelling and giving way, but denied heat, redness, lack of endurance, locking, fatigability or dislocation.  The CI also reported right knee pain elicited by activity, which did not cause incapacitation.  Physical examination showed a normal gait without signs of edema, effusion, weakness, redness, heat, abnormal movement, guarding of movement, locking pain or subluxation, but there was tenderness and crepitus.  The ROM evaluation showed flexion of 135 degrees, with pain starting at 125 degrees, and normal extension.  The right knee ROM was not additionally limited by weakness or incoordination after repetition, but it was additionally limited by 5 degrees due to pain, fatigue and lack of endurance.  Provocative testing showed slight instability from the ACL and posterior cruciate ligaments on the right.  Provocative testing for meniscal pathology was negative. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 20%, analogously coded 5003 (degenerative arthritis), citing X-ray evidence of involvement of the right knee and left ankle with occasional incapacitating symptoms.  The VA dual rated the right knee condition based on the C&P examination at 10%, coded 5010 (traumatic arthritis), citing painful motion and 10% coded 5257, citing slight instability.  

There was no limitation of knee motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  The 5259 code (cartilage, semilunar, removal of, symptomatic) was applicable in this case but the maximum 10% rating under that code provided no benefit to the CI.  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258).  There was no fracture, nonunion or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  The PEB’s rationale for rating the right knee and related left ankle at 20% was based on X-ray evidence of involvement of 2 or more major joints with occasional incapacitating exacerbations, which is a VASRD compliant rating under 5003.  However, the panel noted the right knee Category I condition was independently ratable at 10% under multiple VASRD codes, but no higher, and the left ankle condition is not recommended as separately unfitting as elaborated above.  There was therefore no higher rating than the 20% adjudicated by the PEB under any applicable VASRD code.  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.  

Contended PEB Condition:  Left Shoulder Impingement.  The panel’s main charge is to assess the fairness of the PEB determination that the contended Category III left shoulder condition was not unfitting.  Category III conditions are not separately unfitting and do not contribute to the unfitting condition.  The contended condition was not on limited duty forms or implicated in the NMA.  The CI was referred for additional evaluation of left shoulder pain during the PEB process initiated for the right knee.  At the 5 July 2006 orthopedic examination the CI reported chronic left shoulder pain for many years that bothered him off and on, but was worsening through the years.  The diagnosis was rotator cuff tendonitis and physical therapy was prescribed.  The MEB orthopedic addendum opined that the CI could not perform activities of full duty of his rate and rank due to this condition and indicated further treatment may be needed.  However, there was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance prior to the CI’s entrance into the physical disability process and IAW DoDI 1332.38, this may support a finding of fitness for duty even if the condition may preclude adequate duty performance in the future.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended left shoulder condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the right knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended left ankle and left shoulder conditions, the panel agrees it cannot recommend either one of them for additional disability rating.  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 20161227, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record