RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX		CASE: PD-2017-02881 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20081115

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Aviation Ordnanceman, medically separated for “bilateral knee pain” with a disability rating of 10%.

CI CONTENTION: The military only gave him 10% for the knee and denied compensation for his back. He requested reconsideration for these issues and review of additional conditions 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 - 20080805	VARD - 20090302	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	Right Knee Condition	5260	NSC	20080904	
Status Post Left Knee Scope w/Partial Meniscectomy	Cat II	Osteoarthritis, Left Knee Status Post Arthroscopy, Partial Meniscectomy	5259-
5003	10%	20080904	
Herniated Disc without Radiculopathy	Cat III	Thoracolumbar Muscle Strain with Disc Injury L5-S1…Radiculopathy	5243	20%	20080904	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 60%	
	
ANALYSIS SUMMARY:

Bilateral Knee Pain. The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 5003 and rated 10%. This 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 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 was therefore directed at determining if 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 adjudicated by the PEB.

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s bilateral knee condition began in March 2007 after an injury playing basketball. Left knee X-rays on 10 August 2007 showed no fractures, but there was a small irregularity of the quadriceps tendon insertion on the patella. An MRI in October 2007 showed a meniscal tear without degenerative joint changes, and the CI underwent a partial meniscectomy. Postoperatively, he continued to have pain and did not respond to physical therapy. On 13 June 2008, he reported similar anterior right knee pain during his postoperative course. At an orthopedic follow-up on 10 July, bilateral knee pain was noted without physical examination of the knees. The limited duty report (LIMDU) on 29 February 2008 listed anterior knee pain, and the non-medical assessment (NMA) on 16 July 2008 implicated the left knee but not the right, indicating the CI was unable to perform his military duties due to knee surgery (left) and back pain.

The 14 July 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of bilateral knee pain. The examiner documented a healed, left knee incision with tenderness over the anteromedial portal site, but no “joint irritability.” There was full range of motion (ROM) and all ligaments were intact. Left knee ROM showed flexion of 130 degrees (normal 140) and extension of 0 degrees (normal). Examination of the right knee noted identical findings as the left, including measurements of flexion and extension. The examiner determined that the CI fell below retention standards due to bilateral knee pain. During the 21 July 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported bilateral knee pain. Physical examination revealed am antalgic gait, but the ability to toe-to-heel walk and lower to and rise from a squat. There was patellar tenderness, but full lower extremity ROM and normal strength.

At the 4 September 2008 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported bilateral knee pain. Physical examination of left knee showed no signs of edema, effusion, weakness, redness, heat, abnormal movement or guarding. Knee ROM was normal with 140 degrees of flexion and 0 degrees of extension, and was not additionally affected by pain, fatigue, weakness, lack of endurance or incoordination with repetitive motion. Gait was normal and there were no findings of lateral instability or subluxation. Examination of the right knee noted identical findings as the left, including measurements of flexion and extension.  Left and right knee X-rays were normal.

The panel first considered if the left knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The CI underwent left knee surgery and it was noted on the LIMDU, implicated by the NMA, and failed retention standards. The panel concluded that the left knee was reasonably considered separately unfitting and eligible for disability rating. The panel next considered if the right knee condition also remained unfitting as established above when considered separately. The right knee was possibly included on the LIMDU, which noted “anterior knee pain,” and the MEB NARSUM, which determined the bilateral knee condition caused the CI to fall below retention standards. However, the right knee was not implicated by the NMA and the right knee was not imaged or subject to treatment prior to MEB referral.  Panel members concluded that the  preponderance

of evidence showed the right knee condition on its own would not have caused the CI to be referred into the DES or to be found unfit, and so no additional rating is recommended.

The panel directed attention to its rating recommendation for the unfitting left knee based on the above evidence. The PEB rated the bilateral knee condition 10%, analogously coded 5099- 5003 (arthritis, degenerative), citing painful motion with left knee. The Navy PEB’s Category II diagnosis of status post left knee scope with partial meniscectomy is intrinsic to the rated condition, and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, it is appropriately subsumed under the same rating. The VA rated the left knee condition 10%, analogously coded 5259-5003 (cartilage, semilunar, removal of symptomatic-arthritis, degenerative), based on the C&P examination, citing painful or limited motion of a major joint or group of minor joints, and may also be applied once to multiple joints if there is no limited or painful motion.  The VA did not service connect the right knee based on the C&P examination.

Panel members agreed there was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261). However, the persistence of pain after meniscal surgery warranted a 10% rating under code 5259. There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or 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). There was therefore no higher than a 10% rating supported under any applicable VASRD code. After unbundling the knees, the panel arrived at the same 10% combined rating as assigned by the PEB, which provided no benefit to the CI. Therefore, no change to the PEB’s combined adjudication 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 bilateral knee condition.

Contended PEB Condition: Herniated Disc without Radiculopathy. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended condition was not noted on LIMDU forms, but was implicated in the NMA and failed retention standards. The CI was being followed by orthopedics after the left knee arthroscopy, and at an examination on 10 April 2008, he reported some low back pain, rated at 3/10, without radiation or neurological symptoms. There was tenderness of the paraspinal muscles, and the low back pain was added for physical therapy treatment. At orthopedic follow-up visits in May and June 2008, the CI continued to report low back pain symptoms and was referred first to a chiropractor for treatment, which provided no relief, and then to pain management. The MEB NARSUM recommended he continue non-operative treatment modalities for back pain. The JDETS noted the back findings as discussed above, and indicated the CI had just been referred to the pain clinic and that the back condition was not currently unfitting. After due deliberation, the panel concluded there was not a preponderance of evidence to overcome the PEB fitness determination for the contended herniated disc without radiculopathy condition, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the bilateral knee pain and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the contended herniated disc without radiculopathy condition, the panel recommends no change from the PEB determination as not unfitting. 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 20170324, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN    REPLY   REFER  TO:
1850
CORB: 003 20May20

From: 

Director, Secretary of the Navy Council of Review Boards 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr <ltd 8 Apr 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate action.

2.	On 20 March 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.