RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xx	CASE:  PD1201385
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20130620
SEPARATION DATE:  20020221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve PO2/E-5 (SK2/Storekeeper) medically separated for a right knee condition.  The CI's right leg problems began from a motorcycle accident, which occurred about 1995 while he was in the Reserves but not serving on active duty.  He sustained several fractures that required surgical treatment.  In April 2000, while serving on temporary active duty, the CI injured his right knee.  It was treated, but did not adequately improve to meet the physical requirements of his rating or satisfy physical fitness standards.  He underwent a Medical Evaluation Board (MEB) which forwarded two right knee conditions (anterior cruciate ligament [ACL] deficiency and tricompartmental chondromalacia) to the Informal Physical Evaluation Board (IPEB) IAW SECNAVINST 1850.4E.  The MEB submitted no other conditions.  The IPEB found the tricompartmental chondromalacia unfitting, and rated it 20%.  The chronic ACL deficiency was adjudicated as Category II (contributing to the unfitting chondromalacia condition).  The CI did not accept the IPEB findings and requested a formal hearing.  The Formal PEB (FPEB) combined the two right knee problems into a single unfitting condition, rated at 20%.  The CI was then medically separated.

CI’s CONTENTION:  “Wound should have been a higher %age had to have knee replaced VA rates my disability at 80%.”

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 right knee condition is addressed below.  No other conditions are within the Board’s defined purview.  Any conditions outside the Board’s defined scope of review may be eligible for future consideration by the Board for Correction of Naval Records.

RATING COMPARISON:

Service FPEB/PFR  – Dated 20011211	VA – Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Chronic Anterior Cruciate Ligament Deficiency	5257	20%	Status Post Arthroscopy for Chondromalacia, Tricompartmental, Right Knee, with Anterior Cruciate
Ligament Deficiency	5257	20%	STR	
Grade III-IV Chondromalacia, 
Tricompartmental, Right Knee							
No Additional MEB/PEB Entries	Other x 7	STR 	
Combined:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030722 (most proximate to date of separation [DOS])  

ANALYSIS SUMMARY:  The Board acknowledges the impairment with which the CI’s knee condition continues to burden him, and the impact it has on his quality of life.  However, the Board notes it is subject to the same laws for adjudicating disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for future severity or potential complications of unfitting conditions.  While the Board evaluates Department of Veterans Affairs (DVA) evidence in arriving at its recommendations, its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  The DVA, however, is empowered to compensate for service-connected conditions and to periodically re-evaluate those conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Right Knee Condition.  The CI injured his right leg in a motorcycle accident.  Those leg injuries necessitated numerous surgical operations.  In a subsequent incident, he injured his right knee while walking through an airport.  This knee injury occurred while he was on active duty.  He underwent knee surgery to repair the right knee injury.  However, in spite of surgery and other treatment, his right knee continued to give him problems and a MEB was initiated.  His MEB narrative summary was dated 4 April 2001.  Physical examination of the right knee revealed no effusion, and full range-of-motion.  Crepitus was present, and a McMurray’s test was negative.  A Lachman’s test was positive, and there was a trace positive pivot shift.  X-rays of the right knee showed moderate degenerative joint disease, and possible osteochondral defect of the medial femoral condyle.  The Navy FPEB found the CI unfit for duty, due to tricompartmental chondromalacia and chronic ACL deficiency of the right knee.  The knee condition was coded 5257, and rated at 20%.  The CI was separated from military service in February 2002.  After separation, he filed a claim with the VA.  No Compensation and Pension exam was performed at that time.  The VARD of 22 July 2003 granted service-connection for the right knee condition with a rating of 20%, based on evidence in the service treatment record.

The Board carefully reviewed all available evidence, and directs attention to its rating recommendation.  The 31 October 2001 Navy FPEB combined the two right knee problems into a single unfitting condition, coded 5257 and rated at 20%.  The Board evaluated whether or not it was appropriate for the two knee problems to be “bundled” together.  The Board must determine if the FPEB’s approach of combining the conditions under a single rating was reasonably 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 the Veterans Affairs Schedule for Rating Disabilities (VASRD).  If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each “unbundled” condition was separately unfitting.  After due deliberation, the Board agreed that the evidence did not support a conclusion that each of the right knee problems, separately, would have rendered the CI unable to perform his required military duties.  Specifically, IAW VASRD §4.14 (avoidance of pyramiding), the two right knee problems did not constitute separately unfitting conditions at the time of separation from service.  Accordingly, the Board does not recommend separate disability ratings.  It is reasonably justified for the two right knee problems to be “bundled” together, and treated as a single unfitting condition.

The Board determined that at the time of separation from service, the CI’s right knee impairment was best described as “moderate.”  There was insufficient evidence in the record to support classifying his knee impairment as “severe.”  IAW VASRD §4.71a, under diagnostic code 5257, a rating of 20% is warranted for moderate impairment of the knee.  The Board tried to find a path to a rating higher than 20%, using other codes which could be applied to the knee condition.  The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a significantly disabling knee abnormality which would justify a rating higher than 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends no change in the PEB adjudication of the right knee condition.  It is appropriately coded 5257, and meets VASRD criteria for the 20% rating level.
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 right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.

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	
Chondromalacia and Chronic ACL Deficiency, Right Knee	5257	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120728, 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 11 Sep 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 USN 
- former USMC
- former USN 
- former USN 

	xx
	Assistant General Counsel
	  (Manpower & Reserve Affairs)