RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxx	CASE:  PD1200812
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE: 20130528
SEPARATION DATE: 20020731

SUMMARY OF CASE:   Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (8511/Drill Instructor) medically separated for a bilateral knee condition.   He underwent anterior cruciate ligament (ACL) reconstructive surgery of the left knee in 1991, prior to his enlistment, and of the right in 2001 after an injury. In 2002, he began experiencing significant, intermittent bilateral knee pain that could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “chondromalacia of patella” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded three other conditions (see rating chart below) for PEB adjudication.   The PEB adjudicated the bilateral knee chondromalacia as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II (CAT II).   The CI made no appeals, and was medically separated.

CI CONTENTION:  “The examination board only considered the right knee/ACL reconstruction and did not consider the damaged left knee/ACL reconstruction that was done prior to enlistment but subsequently damaged during the right knee rehabilitation.  The left ACL was replaced again in Jan 2008, due to this damage.  It was the damage done to both knees, along with the degenerative arthritis that limited my ability to recover adequately to continue in my military career, nor any other disqualifying, service connected injuries.“

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 and the related CAT II conditions are 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.

RATING COMPARISON:

Service IPEB – Dated 20020528	VA* - (9 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam

Status Post ACL Reconstruction with

Bilateral Knee
Chondromalacia	5299-5003	10%

Left Knee Surgery with

Degenerative Arthritis, Left
Knee

Residuals ACL Reconstruction with Degenerative Arthritis, Right Knee
Residuals ACL Reconstruction, Degenerative Arthritis with Recurrent Subluxation, Right Knee

5010-5260	20%	20030415

5010-5260	20%	20030415

5010-5257	10%	20030415

Repair of the MCL and
Reconstruction of the ACL
Status Post Reconstruction Right ACL with Bone Tendon Bone Graft using Central Third Patellar Tendon
S/P Left Bristow Procedure

CAT II

CAT II

Noted by VA Entries above	20030415

for Recurrent Dislocation
Left Shoulder

Status Post Bristow Repair of

CAT II

Left Shoulder

5299-5203	NSC	20030415

No Additional MEB/PEB Entries	Other x 8	20030415
Combined: 10%	Combined: 50%
* Derived from Decision Review Officer Decision (DROD) dated 20040518

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that his left knee was damaged and his VA service-connected conditions; but, must emphasize 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.

The  PEB  combined  the  bilateral  knee  condition  as  a  single  unfitting  condition,  coded analogously to 5003 and rated at 10%.  The PEB adjudicated the status post (s/p) left Bristow procedure for recurrent dislocation left shoulder as a CAT II condition, related to the unfitting condition.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating and the related CAT II were justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations  if  compensable  ratings  for  each  condition  are  achieved  IAW  applicable VASRD sections.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the reasonable requirement that each ‘unbundled’ and related conditions were unfitting in and of itself or at least an indispensable element of a combined effect rating.    Thus the Board must maintain the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Bilateral Knee Chondromalacia.   Treatment records revealed the CI underwent surgery of his left knee in 1990 to repair the medial capsule, meniscus and medial collateral ligament.  In June
2001, the CI injured his right knee during an obstacle course.  Magnetic resonance imaging of the right knee, July 2001, demonstrated findings consistent with ACL tear; moderate joint effusion,  and  swelling  within  the  tibial  plateau.     In  August  2001  the  CI  underwent  an arthroscopic  assisted  reconstruction  of  the  ACL.    Approximately  10  weeks  after  surgery,

orthopedic  examination  of  the  right  knee  revealed  full  range-of-motion  (ROM),  with  no evidence of instability, inflammation, or tenderness.  In January 2002, approximately 6 months prior to separation, orthopedic physician recorded the CI was doing well, was experiencing some pain with long distance running, and had stiffness in both knees with weather changes. Physical examination revealed full ROM in the right knee, no effusion, and no instability.  The CI continued to report bilateral knee pain and an orthopedic evaluation in February 2002, noted normal knee examination except for left greater than right tenderness to palpation with “OK.” ROM.  The diagnostic impression was noted as early chondromalacia of the knees.  Treatment records indicated no objective findings of knee locking, instability, effusions, gait disturbance, or significant limitation in ROM.   At the MEB/narrative summary (NARSUM), 4 April 2002, approximately 3 months prior to separation, the CI reported intermittent knee pain that interfered with his ability to complete his physical fitness tests.  The physician opined, “it is doubtful that the condition of either knee would recover enough to allow full duty status…at the present time the patient has difficulty running more than one mile, after which both knees would hurt equally.”  The MEB recorded painful motion of the right knee.  Quantitative ROM for the knees was not recorded.

At the VA Compensation and Pension (C&P) exam 15 April 2003, 9 months after separation, the CI noted stiffness, soreness, difficulty with ambulation, inability to run farther than one city block, and ‘unstable feeling’.  He had not lost any time from work as result of his knees.  On physical examination, his gait was recorded as stiff, without limping.   He could extend both knees to 0 and flexion was recorded at 140 degrees bilaterally.   Both knees showed pain, fatigue and lack of endurance.  The examiner recorded normal McMurray tests and slightly positive drawer sign.   Right knee series showed advanced degenerative changes of the patellofemoral articulation; left knee series showed early degenerative changes.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB combined the bilateral knee chondromalacia conditions and rated analogously to the 5003 degenerative arthritis with a 10% disability rating.  The VA rated each knee at 10% citing painful motion, coded analogous to 5010 degenerative arthritis and 10% for the right knee instability as slight subluxation of the right knee coded 5257 subluxation.  The Board first considered if each knee could be reasonably justified as separately unfitting.   The Board noted multiple service treatment visits for each extremity requiring pain management and limitation of performance of duties.  The Board determined the record in evidence reasonably supported that both knees were separately unfitting.   In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  Both the NARSUM and the C&P examinations recorded each knee as equally symptomatic.  A higher rating under the
5010 or 5003 code requires documented evidence of incapacitating exacerbation that was not supported by the record at hand.  There was no evidence of gait abnormality, incapacitating exacerbations, no quarters ordered, and no visits to emergency room specifically for knee pain within a year of separation, and all ROMs recorded were full.  Therefore, the Board concluded there was no evidence in the treatment record that would not support rating code option 5260,
5261, or 5258.  Additionally, there was no evidence of ratable peripheral neuropathy, and no objective findings of knee instability for either knee.  The Board placed lower probative value on the C&P examination because it‘s post-separation instability findings were inconsistent with multiple pre-separation orthopedic examinations.   There was no evidence of right knee instability in any entries prior to separation.  The Board noted the clinic examination of 2007, 5 years  after  separation,  recorded  full  ROM  bilaterally,  a  normal  gait  and  no  evidence  of instability.  The Board determined that the preponderance of evidence in the treatment record did not support a rating under the 5257 knee instability code.   The Board adjudged that the record sufficiently documented pain on motion of each knee and therefore, agreed VASRD §
4.59, painful motion was applicable.   The Board opined that the left and right knee surgical repair and reconstruction of ligaments condition were integral part of the knee pain pathology and could not be recommended for additional rating IAW VASRD 4.14 avoidance of pyramiding.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 reasonable doubt, the Board recommends a disability rating of 10% for each knee, IAW VASRD §4.59 painful motion for the left and right knee chondromalacia condition.

Status Post Left Bristow Procedure for recurrent Dislocation Left Shoulder (CAT II) condition. The Board’s main charge is to assess the fairness of the PEB’s determination that s/p left Bristow procedure for recurrent dislocation left shoulder (CAT II) condition was related to the unfitting condition and not separately unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 reasonable doubt standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The CI underwent a Bristow repair of his left shoulder on December 14, 1989 prior to entry into service.  There was no evidence of complaints, symptoms, treatment, or diagnosis of a chronic left shoulder disability in the treatment records.  The NARSUM documented the left shoulder reconstruction as recovered and that the CI was able to do his pull-ups without great difficulty. It was noted that the shoulder would hurt with changes in the weather.  The s/p left Bristow procedure for recurrent dislocation left shoulder condition was not profiled or implicated in the commander’s statement and not judged to fail retention standards.  There was no performance based evidence from the record that the left shoulder significantly interfered with satisfactory duty performance.   After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of left shoulder condition does not favors its recommendation as an additionally unfitting condition for disability rating.

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 bilateral knee chondromalacia condition, the Board by a
2:1 vote, recommends a disability rating of 10% for each knee, a combined rating of 20%, coded
5010-5003,  IAW  VASRD  §4.71a.     The  single  voter  for  dissent,  who  recommended  no
recharacterization, did not elect to submit a minority opinion.   In the matter of the s/p left
Bristow  procedure  for  recurrent  dislocation  left  shoulder  (CAT  II)  condition,  the  Board
unanimously agrees that it cannot be recommended as separately unfitting and therefore,
cannot be recommended for additional disability rating.  There were no other conditions within
the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Left Knee Chondromalacia	5010-5003	10%	
Right Knee Chondromalacia	5010-5003	10%	
	COMBINED w/BLF	20%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120611, w/atchs
Exhibit B. Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Xx
President
Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	 COMMANDER, NAVY PERSONNEL COMMAND
	     	          		           	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 9 Aug 13 ICO 
          (c) PDBR ltr dtd 17 Jul 13 ICO  
          (d) PDBR ltr dtd 16 Jul 13 ICO  
          (e) PDBR ltr dtd 9 Aug 13 ICO  
          (f) PDBR ltr dtd 9 Aug 13 ICO  
          (g) PDBR ltr dtd 29 Jul 13 ICO 
          (h) PDBR ltr dtd 8 Aug 13 ICO  
                                        
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (h).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a.  former USMC:  Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 15 October 2001.

     b.  former USN:  Disability retirement with assignment to the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective 2 May 2003.

     c.  former USN:  Disability retirement with assignment to the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective 2 June 2009.

     d.  former USN:  Disability separation with a final disability rating of 20 percent  increased from ten percent) effective 5 October 2004.

     e.  former USMC:  Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 31 July 2002.

     f.  former USMC:  Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 1 August 2005.  

     g.  former USMC:  Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 2 July 2002.
	
3.  Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.

xx
						  Assistant General Counsel
						    (Manpower & Reserve Affairs)