RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01635
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141121
SEPARATION DATE:  20040408

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-4 (MS3/Mess Management) medically separated for a left knee condition.  The knee condition did not rehabilitate adequately to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty [LIMDU] and underwent a Medical Evaluation Board (MEB).  The left knee condition, characterized as “left knee pain, s/p acute traumatic patellar dislocation” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB found the left knee condition unfitting, rated at 10% with likely 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 am permanently disabled by this injury I received while enlisted in the Navy, and it caused sleep apnea as well as PTSD”.  

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 left knee condition is addressed below.  No other conditions, to include the contended sleep apnea and PTSD, are within the defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Naval Records.

The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his knee condition continues to burden him and the significant impact it has had on his quality of life.  It is noted for the record that the Board is subject to the same laws for 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 conditions.  That role and authority is granted to the Veterans’ Administration (VA).

The Board evaluates VA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  The CI has contended that he suffered from sleep apnea and PTSD.  While other conditions and diagnoses may have existed, compensation can only be offered for those conditions that cut short a service member’s career and then only to the degree of severity present at the time of separation.  The VA, however, is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions and adjust the Veteran’s disability rating should the degree of impairment change over time.

RATING COMPARISON:  

Service IPEB – Dated 20040305	VA – (6 mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Pain	5099-5003	10%	Left Knee Condition	5099-5010	10%	20041013	
Other x 0 (Not in Scope)	Other x 1	20041021	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20041119 (most proximate to date of separation)

ANALYSIS SUMMARY:  

Left Knee Pain.  In April 2003, the CI fell and injured his left knee.  His treatment included knee immobilizer, ambulating with crutches for 4 weeks and an extensive period of physical therapy.  In spite of treatment, his knee pain persisted and MEB was initiated.  The MEB narrative summary (NARSUM) on 25 November 2003, the CI reported significant difficulty negotiating stairs, running, deep squatting, or prolonged walking.  He also had a sensation of instability in the left knee, with occasional popping.  Physical examination of the left knee revealed full range-of-motion (ROM), with marked patellar compression pain and the knee was ligamentous stable with no meniscal pathology.

The CI was separated from service on 8 April 2004 and his VA Compensation and Pension (C&P) examination performed 6 months later in October 2004.  During C&P examination, the examiner noted that the CI was walking abnormally and was using a cane.  The left knee ROM was 0 to 125 degrees.  There was no significant pain through that ROM (0-125 degrees), but when the examiner tried to flex the knee more, the CI had pain.  The knee was ligamentous stable.  The physical examination of the left patella revealed patellar malalignment.  The examiner diagnosed instability of the left patella.  The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Left Knee ROM
(Degrees)	NARSUM ~ 5 Mos Pre-Sep
(20031125)	VA C&P ~ 6 Mos Post-Sep
(20041013)	
	Left	Left	
Flexion (140 Normal)	130	125	
Extension (0 Normal)	-5	0	
§4.71a Rating	10%*	10%*	
	*10% based on VASRD §4.40 (Functional loss), §4.45 (The joints), and §4.59 (Painful motion)

The Board carefully reviewed the data from the knee examinations noted above and directed attention to its rating recommendation based on the above evidence.  The November 2003 MEB examination was closer to the date of separation and therefore carries significant probative value.  At that exam, there was full ROM of the left knee.  The left knee condition was essentially non-compensable based on the VASRD §4.71a codes for loss of knee motion (5260 and 5261).  However; IAW VASRD §4.40, §4.45 and §4.59, when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  A 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint.  There was no path to a higher rating for the left knee since there was no evidence of joint instability, subluxation, or other significant knee abnormality.  After due deliberation, the Board determined that a disability rating of 10% was appropriate.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the chronic unfitting left knee pain.

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 §4.40, §4.45, and §4.59, 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 20130917, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXX
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 22 Apr 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:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXXX
	     				  Assistant General Counsel
		  (Manpower & Reserve Affairs)