RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx	CASE:  PD1200551
BRANCH OF SERVICE: NAVY	BOARD DATE:  20130523
SEPARATION DATE:  20011005

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty DC2/E-5 (NBC Operations & Training Specialist) medically separated for a left knee condition.  He suffered a left knee injury in 1985 (prior enlistment) necessitating surgery for reconstruction of the anterior cruciate ligament (ACL).  He underwent surgical revision in 1986, experienced continued symptoms, and underwent an ACL reconstruction in 2000.  Despite subsequent efforts at rehabilitation, he could not meet the physical requirements of his rating or satisfy physical fitness standards.  After two trials of limited duty, he was referred for a Medical Evaluation Board (MEB).  The left knee condition was forwarded, as the sole submission, to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4D.  The PEB adjudicated “severe degenerative arthrosis of the left knee, Status-Post (s/p) revision left anterior cruciate ligament reconstruction” as unfitting, rated 10%, with presumptive application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated.

CI CONTENTION:  The CI writes: “I always took pride in being in excellent physical condition, I could have passed my PRT [Physical Readiness Test].  I wasn’t afforded the opportunity.  I had over 19 years in.  I argued my National Guard time should count, by it fell on deaf ears.  I was told matter of factly to take a lump sum, shut up and move on.  I have deployed to Iraq and Afghanistan. ...”  The application proceeds with details of military service preceding the date of separation (DOS), and injuries sustained in a car accident in 1997.  Attached to the application was a copy of an email acknowledging participation in a 2012 Afghanistan deployment; although logically this was in a civilian capacity, since there are no submitted records for military active duty following DOS.  Also attached is a letter to the Board with similar content.  This reiterates the CI’s opinions that the separation proceedings were rushed and unfair and that he should have been eligible to retire.  It concludes with what the Board perceives as the crux of his request, “I am asking that this board review the facts and permit me to retire with a full pension.  I am supporting a wife and 3 children on 370.00 per month.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting knee condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records (BCNR).

To the extent that the CI is requesting a retirement premised on fairness relative to length of service, rather than one premised on an unfairly low disability rating; the Board emphasizes that it does not have the jurisdiction to offer remedy with regard to decisions of this nature.  That authority resides with the BCNR.  Likewise it is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to allegations of impropriety related to the administrative process of separation.  That authority also resides with the BCNR.  Finally, the Board emphasizes that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

RATING COMPARISON:

Service IPEB – Dated 20010823	VA  (5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Severe Degenerative Arthrosis w/ Surgical Residuals, Left Knee	5299-5003	10%	Residuals, Left Knee	5010-5260	10%	20020307	
No Additional MEB/PEB Entries	Other x 2*	20020307	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20020802 (most proximate DOS).  
* VARD of 20030325 added another condition, retroeffective to DOS, increasing the combined rating to 30%.

ANALYSIS SUMMARY:

Left Knee.  As per the summary, the CI had a long history of left knee impairment complicating ACL damage; and, resulting in three arthroscopic surgeries.  Over time he was rendered unable to tolerate shipboard tasks, and was confined to shore-based desk duties.  The Board is in receipt of medical records that were unavailable to the PEB, and some of the dates are in conflict; although these discrepancies would not have influenced the rating determination.  The first entry in the record is from June 1985, documenting a left knee injury from a fall down stairs.  In July 1987 the CI was evaluated for 11 months of pain and laxity, and scheduled for surgery which was performed in August 1987.  An orthopedic note from October 1989 stated the CI was scheduled for an arthroscopy that month, due to instability and hemarthrosis (blood in the joint) after an injury playing basketball.  The hemarthrosis was aspirated, but there is no procedure note for the referenced arthroscopy.  On 13 July 2000, the CI underwent his final surgical intervention-an ACL reconstruction with allograft.  The report of medical board (1 May 2001) documented, “He states that his knee is stable; however, the patient has had significantly increased pain with ambulation. ... At this point, the patient is unable to perform his duties, due to his ongoing knee pain.  He cannot climb ladders.  He cannot run.  His pain is approximately 7/10.”  The physical exam noted “a fixed varus deformity,” medial tenderness, and patellofemoral crepitus.  The joint was stable to stress maneuvers, without signs of cartilage impingement.  The range-of-motion (ROM) was flexion of 110 degrees (normal 140 degrees, minimal compensable 45 degrees).  At the VA Compensation and Pension evaluation (5 months post-separation), the examiner noted “constant pain with inability to run” and inability to fully flex the knee.  The VA physical exam noted surgical scars, anterior edema, no tenderness, and normal strength; but did not document ligamental stress testing or meniscal maneuvers.  The ROM measurement was flexion of 60⁰.  Both the MEB and VA documented X-ray evidence of severe degenerative changes.  There was no documentation of abnormal gait or use of a brace.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating as analogous to 5003 (degenerative arthritis) was compliant with VASRD §4.71a.  The VA’s rating under 5260 (limitation of flexion) invoked VASRD §4.59 (Painful motion) to achieve the minimum rating of 10%.  There is no compensable ROM impairment; and, evidence doesn’t indicate the presence of ligamental laxity, frequent effusions, or locking.  There is therefore no VASRD §4.71 a route to a rating higher than 10% under any applicable code, and no grounds for additional rating of instability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the left knee condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.   There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Severe Degenerative Arthrosis and Surgical Residuals, Left Knee	5299-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120605, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

xx
President
Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW 
                                        BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
          (b) CORB ltr dtd 20 Aug 13

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, 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:

- former USN 
- former USMC
- former USMC
- former USMC
- former USMC
- former USN 
- former USMC
- former USN 

						  xx
	     					  Assistant General Counsel
						     (Manpower & Reserve Affairs)