RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01228
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141231
SEPARATION DATE:  20040417

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Information System Technician) medically separated for chronic right knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Rating.  She was placed on light duty and eventually referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “chronic right knee pain secondary to severe chondromalacia patella” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic right knee pain” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have constant pain in my R knee since being separated.  My L knee is equally as bad now it was just slower to appear.  It drastically interferes with my life since the use of both of my knees is extremely limited.  I have been told that they will not improve drastically, and so I am doing what I can to prolong the joints.  The pain is so bad at times that all I can do is sit down and ice and rest.  I have chosen not to do narcotics for pain control so every day is hard.” 

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service  IPEB – Dated 20040220	VA - (5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain	5299-5003	10%	Degenerative Joint Disease, Traumatic, Right Knee…	5010-5260	10%	20040926	
Other x 0 (Not In Scope)	Other x 3	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20050128 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Knee Condition.  The earliest treatment records dated 2001 reflect a 2-year history of right knee pain after a motor vehicle accident (dashboard injury) in 1999.  Despite physical therapy and local injections, her pain remained.  Radiology tests revealed a torn medial meniscus and in May 2003, she underwent an uncomplicated arthroscopy for meniscal and patellar debridement.  Post-operatively, her pain continued and she was referred for an MEB.  At the narrative summary examination (approximately 6 months prior to separation), the CI reported the inability to run or perform any impact activity or stair climbing without severe knee pain.  Her examination revealed “…a stable right knee joint with moderate to severe patellar crepitance, decreased range-of-motion (ROM) and pain consistence [sic] with chondromalacia patella.”  There was no comment regarding the presence of an effusion.  Her diagnosis was chronic right knee pain secondary to severe chondromalacia patella.  The commander’s non-medical assessment indicated not meeting standards with implication to her right knee condition and offered an unfavorable opinion as to retention.  At the VA Compensation and Pension exam performed 5 months after separation, the CI reported a long history of bilateral knee pain without associated historical trauma or inciting event.  The CI noted “limitations of lifting, stair descending, and ambulating long distances.”  Her examination revealed a normal gait.  There was bilateral knee tenderness, crepitus, and decreased painful motion.  No instability was present.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 20040417
Right Knee ROM
(Degrees)	NARSUM ~ 6 Mo. Pre-Sep
(est. 20031101)	JDETS ~ 3 Mo. Pre-Sep
(20040106)	VA C&P ~ 5 Mo. Post-Sep
(20040926)	
Flexion (140 Normal)	120	120	75	
Extension (0 Normal)	0	0	0	
Comment	painful motion;
(+) crepitus;
(+) tenderness	(+) crepitus	painful motion;
normal gait;
(+) crepitus	
§4.71a Rating	10%	10%	10%	
.
The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis).  Using an analogous dual code 5010-5260 (traumatic arthritis-limited flexion), the VA also assigned a 10% rating citing degenerative changes and tenderness.  While there was no evidence of compensable limitation of motion, the Board agreed that the PEB’s 10% rating was supported under the 5003 coding pathway by sufficient evidence of painful motion (§4.59), or §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the persistence of painful motion as evidenced by crepitus was such the case in this condition, or alternatively, under 5259 code (cartilage, semilunar, removal of, symptomatic) due to meniscal debridement surgery.  Lastly, although considered, codes 5258 and 5262 were not justified at a 20% level in the presence of a stable non-locking knee where the boney pathology did not involve the tibia or fibula.  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 for the right 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 right 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130909, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd 13 May 15

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

-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX , former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)