RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-05630 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20050930

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Special Communications Signals Operator/Analyst, medically separated for “bilateral patellar instability” with a disability rating of 20% which was then given a 10% deduction as the condition was determined to have existed prior to service (EPTS).

CI CONTENTION: Review was requested of additional conditions (spinal cord injury) not identified by the Medical Evaluation Board (MEB) and/or 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 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 – 20050622	VARD - 20051129	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Patellar Instability	5099-5003	10%	Left Knee Patellar Tendonitis
with Osteoarthritis	5003-5024	10%	
20050629	
			Right Knee Patellar Tendonitis with Osteoarthritis	
5003-5024	
10%		
Bilateral Patellar Tendonitis	Cat II					
Osteoarthritis Right Knee	Cat II					
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:

Bilateral Patellar Instability. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent two arthroscopic debridement surgeries for each knee prior to enlistment. The 18 December 2002 MEPs examination noted bilateral surgical knee scars, but normal lower extremity. The CI stated that he ran a first class physical fitness test in boot camp and was not limited by any form of knee pain. He began having problems in April of 2004 when he was injured while grappling.

The 12 May 2005 MEB NARSUM examination, 4 months prior to separation, noted complaints of pain and stiffness in both knees. Physical examination revealed an antalgic gait, exquisite tenderness along the patella facets bilaterally and along the medial joint line and medial femoral

condyle. Range of motion (ROM) of each knee was flexion to 130 degrees (normal 140) and hyperextension to 10 degrees (normal 0). Painful motion was noted. At the 29 November 2005 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported bilateral knee pain. Physical examination revealed flexion to 120 degrees (normal 0-140) with pain. Extension was normal and without pain.

The panel directed attention to its rating recommendation based on the above evidence. The PEB bundled both knees and applied a single 20% rating with a 10% EPTS deduction for a final 10% rating, analogously coded 5099-5003 (degenerative arthritis). The PEB also listed bilateral patellar tendonitis and osteoarthritis right knee as Category II conditions that contributed to the primary unfitting condition but were not separately ratable. The impairment from the conditions was properly subsumed under the overall rating for the bilateral patellar instability condition IAW
§4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). The VA rated the left and right knee conditions 10% each, for a combined 20%, analogously coded 5003-5024 (tenosynovitis), based on the C&P examination, citing limited ROM of each knee for flexion at 0-120 degrees due to pain, while extension was normal and without pain.

Panel members first considered whether each knee, having been de-coupled from the combined PEB adjudication, remained separately unfitting. In this case, both knees were implicated by the commander’s statement and failed retention standards. Undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with military duty performance. Therefore, the panel agreed that each knee was reasonably justified as separately unfitting.

The PEB determined the knee condition was EPTS based on the military entrance examination. The panel found no evidence to indicate this was incorrect. The panel next considered whether or not there was evidence of service aggravation. A presumption of service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service. Panel members agreed that the evidence supported permanent service aggravation. The military entrance examination was normal except for documentation of surgical scars; therefore the evidence did not support a 10% deduction.

There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261) of the knees. However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40 and 4.45) for the left and right knees at the VA examination. The panel considered other VASRD knee and analogous codes, but all were less applicable and/or not advantageous for rating. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating as follows: an unfitting left knee, rated 10%, and an unfitting right knee rated 10%, both coded 5014; for a combined 20%.

BOARD FINDINGS: In the matter of the bilateral patellar instability condition, the panel recommends that each joint be separately adjudicated as follows: an unfitting right patellar instability condition coded 5014 and rated 10%, and an unfitting left patellar instability condition, coded 5014 and rated 10%, both IAW VASRD §4.71a. In the matter of the contended bilateral patellar tendonitis and osteoarthritis right knee conditions, the panel recommends no change from the PEB determination as Category II. There are no other conditions within the panel’s scope of review for consideration.

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Right Patellar Instability	5014	10%	
Left Patellar Instability	5014	10%	
	COMBINED	20%	

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 12 Oct 20

From:	Director, Secretary of the Navy Council of Review Boards To:	
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)
Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 28 Jan 20
1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy for appropriate action.

2.	On 7 October 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) took action in your case by accepting the recommendation of the PDBR. Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 10% to 20% without re-characterization of your discharge.

3.	For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, has been forwarded to the office of the Deputy Commandant, Manpower and Reserve Affairs, for appropriate changes to your personnel records and notification to you upon completion.