RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX		CASE: PD-2018-00390 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20050124

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Cryptologic Maintenance Technician, medically separated for “Grade III documented chondral type changes on the undersurface of the [right] patella” with a disability rating of 10%.

CI CONTENTION: “Member reports pain, locking & crepitus in r knee post surgery x 2 during service. Member reports pain, dislocation & tear in l knee during service.” Review also requested review of additional conditions 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 – 20041019	VARD - 20050603	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Grade III Chondral Type
Changes…Right Patella	5299-5003	10%	
Patellofemoral Chondromalacia Patella, Right Knee	
5260-5257	
10%	
20041130	
Patellar Instability, Status Post Lateral Release and Soft Tissue
Realignment	
Cat II					
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:

Grade III Chondral Type Changes of the Patella. According to the service treatment record and MEB narrative summary (NARSUM), the CI sustained a right knee injury during boot camp and underwent a lateral release in March 2002 (with degenerative changes noted) and a lateral patella femoral ligament repair for medial patella instability in October 2003. At an orthopedic visit in February 2004, right knee range of motion (ROM) was recorded as “3-0-135 degrees” (normal 0-140), and in August 2004, physical therapy (PT) measurements showed full active ROM with no effusion or tenderness but mild laxity of the anterior cruciate ligament (ACL) and medial collateral ligament (MCL). Despite the surgeries, the CI continued to have right anterior knee pain and described feelings of instability in the kneecap.

The 1 September 2004 MEB NARSUM examination, 5 months prior to separation, noted CI complaints of right knee pain with stair climbing. Physical examination showed a normal gait and station, a well-healed midline scar over the anterior aspect of the right knee, and no right lower extremity malalignment. There was some palpable crepitus, but no evidence of maltracking in flexion and extension. Varus and valgus ligamentous examination was stable with negative Lachman’s and posterior drawer tests. The examiner noted positive patellofemoral compression pain and that the patella went out three quadrants laterally and two quadrants medially. Neurovascular findings were normal and the diagnosis were “patellar instability, status post lateral release and soft tissue realignment and grade III chondral type changes on the undersurface of the patella.”

At the 30 November 2004 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI complained of ongoing right knee pain and patellar instability. She reported using a knee brace when walking for any period of time, but did not wear it at the examination. Physical findings showed a normal gait and no swelling, but an inability to fully squat or kneel. McMurray’s testing was positive with medial joint line tenderness, and anterior drawer maneuvers showed some looseness with about 9 mm of play. Lachman’s testing was negative and anterior, medial and lateral ligaments were intact. A patellar grind test was positive with patellar crepitance graded at 2-3/4 and significant patellar mobility particularly with lateral displacement and painful movement out of the patellar tract. Right knee ROM was from 0-105 degrees. The diagnosis was “right knee patellofemoral chondromalacia patella with patellar instability with frequent subluxation with relocation,” and the examiner also noted “moderate to significant dysfunction.” Bilateral knee X-rays on 1 December 2004 demonstrated no fracture or dislocation of either knee.

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 (arthritis, degenerative), and listed “patellar instability, status post lateral release and soft tissue realignment” as a Category II condition (contributes to the primary unfitting condition but not separately ratable). The VA rated the right knee condition 10%, analogously coded 5260-5257 (leg, limitation of flexion-knee, other impairment of), based on the C&P examination, citing recurrent slight subluxation or lateral knee instability. Panel members extensively discussed the PEB adjudication of the knee conditions, noting that the MEB’s order of referral listed the patellar instability first and the chondral changes of the patella second. The NARSUM examination diagnoses retained the same order as did the PEB on its joint disability evaluation tracking system findings worksheet. However, on the PEB Proceedings document, the chondral changes were listed as the first condition and the patellar instability was listed as a related Category II diagnosis. Consequently, each panel member carefully attempted to interpret the juxtaposition of the order of the diagnoses and find a relationship, or lack thereof, between the two conditions, which after much dialogue led to a preliminary agreement that pain was a primary issue, although difficulty climbing stairs was also problematic and could be related to both pain and patellar instability. Thus, the panel did agree that the Grade III documented chondral type changes of the patella was unfitting, and while there was no compensable limitation of flexion or extension (5260 or 5261), there was evidence of painful motion with functional loss supporting a 10% rating IAW VASRD §§4.59, 4.40 and 4.45. Panel members 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the patellar chondral changes.

Contended PEB Condition: Patellar Instability, Status Post Lateral Release and Soft Tissue Realignment. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was a Category II diagnosis that contributed or was related to the primary

unfitting condition. The contended condition was listed on a limited duty form, but was not explicitly implicated in the commander’s statement, although it was noted the CI could not be assigned to specific and maintenance support duties. Panel members then discussed whether the patellar instability rose to the level of being a separately unfitting condition, noting that it was the basis for the October 2003 lateral patella femoral ligament repair for medial patella instability. Post-operatively, the CI continued to have anterior knee pain and described feelings of right kneecap instability, and the NARSUM and VA examiners noted significant and painful patellar mobility. The panel majority concluded that the patellar instability was separately unfitting and appropriately coded 5257 (knee, other impairment of: recurrent subluxation or lateral instability), based on the CI’s surgical history, reports of difficulties navigating stairs and feelings of instability, use of a knee brace, and documented findings of unequivocal patellar instability. The minority voter felt the patellar instability was not separately unfitting (no reported episodes of falling or knee buckling), but was a Category II condition that contributed to the CI’s overall knee pain. Furthermore, the minority voter indicated that even if the patellar instability were separately unfitting, the use of code 5257 was inapplicable since it could be interpreted as ligamentous instability, which although present prior to separation, was not considered applicable since the PEB specifically addressed patellar instability thereby precluding it from the scope of review. Lastly, the minority voter expressed concern as to whether having the patellar instability as a potentially ratable condition would invoke pyramiding IAW VASRD
§4.14 (avoidance of pyramiding). To that point, the panel majority noted a VA Counsel General opinion dated 1 July 1997 permits instability (5257) to be combined with arthritis (5003), with the combination not considered to be pyramiding IAW VASRD §4.14. Therefore, the panel majority determined that rating under code 5099-5003 and code 5257 was appropriate and applicable since there was performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation due to pain and the inability to navigate stairs or be assigned specific military duties. After due deliberation, the panel majority agreed the preponderance of the evidence with regard to the functional impairment of patellar instability favors its recommendation as an additionally unfitting condition for disability rating. It is appropriately coded 5257 and meets the VASRD §4.71a criteria for a 10% rating consistent with a mild disability.

BOARD FINDINGS: In the matter of the chondral type changes of the patella and IAW VASRD
§4.71a, the panel recommends no change in the PEB adjudication. In the matter of the contended patellar instability, the panel majority agrees it was unfitting and recommends a disability rating of 10%, coded 5257 IAW VASRD §4.71a. The single voter for dissent recommends no change and did not elect to submit a minority opinion. 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	
Grade III Documented Chondral Type Changes on the
Undersurface of the Patella	5099-5003	10%	
Patellar Instability, Status Post Lateral Release and
Soft Tissue Realignment	5257	10%	
	COMBINED	20%	

DEPARTMENT OF THE NAVY
SECRETARY OF TIIB 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: To:

Subj:

Ref:

Director, Secretary of the Navy Council of Review Boards 

PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)
(a) DoDI 6040.44
(b)	PDBR ltr of 14 May 20
(b)	

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 Navy Personnel Command for appropriate changes to your personnel records and notification to you upon completion.