RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01978
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150121
Separation Date:  20060106

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O-3 (Surface Warfare Officer) medically separated for bilateral anterior knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her rating or satisfy physical fitness standards.  She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The bilateral knee condition, characterized as “pain in lower leg joint” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “bilateral anterior knee pain” as unfitting, rated 10%.  The PEB also adjudicated patella mechanism malalignment and probable chondromalacia left knee and right knee pain status post osteochondral defect drilling and lateral disease as Category II conditions (“Conditions contributing to the unfitting condition”).  The CI appealed to the Formal PEB, but later withdrew the appeal and was medically separated.

CI CONTENTION:  “I am responding to this application for a review of my physical disability rating because I was not fairly rated when my physical board initially went up for review it was rushed thru and my case was not handled with care.  For instance, I have problems with both of my knees with surgery on the right.  I don’t think 10% rating on my knees was fair at all my left ear has problems after being on the carrier with the constant flux of airplanes.  10% was not fair rating for my hearing.  These body parts mean more to me than 10%.  That’s like 10% of a $1.00 which is .01.  My knees and ears are needed to function, to work, to enjoy life so yes I feel that I was underrated and I would like a review of my board.  Also, I recently submitted or reopened my case with my Bipolar Disorder.  I submitted for PTSD so that is currently in process now.  Also have existing Dental Problems that occurred while I was in the Navy and having problems now.  When I was examined for Fibrocystic Breast Disease and the results came back stating that this existed prior to service which is not true and I don’t know where they gathered that evidence from.  So I would like a new board review!”

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 20050808 | VA - (9 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Bilateral Anterior Knee Pain | 5299-5003 | 10% | Patellofemoral Syndrome Bilateral Knees | 5099-5003 | 10% | 20061005
Patella Mechanism Malalignment and Probable Chondromalacia Left Knee | Category II | | | |
Right Knee Pain s/p Osteochondral Defect Drilling and Lateral Release | Category II | | | |
Other x 0 (Note in Scope) | Other x 2
Rating:  10% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20061019 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  

Bilateral Anterior Knee Pain Condition.  The CI developed bilateral knee pain in 2002 after a physical fitness test in which she tripped and twisted her knee with swelling.  She was started on a non-steroidal anti-inflammatory drug (NSAID) which provided temporary pain relief.  The CI continued to have anterior left knee pain after exercising, stair climbing and squatting.  The orthopedist noted that the CI reported that the left knee was more painful than the right knee at the time of the evaluation.  The examiner noted that left knee X-rays showed mild degenerative changes in the patellofemoral joint.  The left knee magnetic resonance imaging (MRI) was normal.  The orthopedist continued to note left knee pain, tenderness along the medial joint line and a range-of-motion (ROM) of 120 degrees flexion (normal is 140 degrees).  The examiner diagnosed left knee patellofemoral syndrome and opined that the CI would benefit from Hyalgen therapy.  The CI was given her first Hyalgen injection for the right knee on 4 October 2004.  The right knee demonstrated limited flexion to 120 degrees and tenderness along the medial joint line.  A second Hyalgen injection in the right knee was given on 11 October 2004.  A right knee MRI demonstrated slight injury to the anterior cruciate ligament with minimal degenerative changes.  The third Hyalgen injection was given on 15 November 2004.  The CI underwent a right knee arthroscopy with drilling of osteochrondral defect of the lateral femoral condyle; lateral release and limited synovectomy on 26 January 2005.  Post-operatively, the CI was treated by physical therapy (PT) from February 2005 through to June 2005.  At follow-up, the orthopedist noted that she was doing well with her right knee and also noted the presence of anterior left knee pain.  There were physical exam findings of right knee ROM flexion limited to 110 degrees, and left knee patellofemoral pain and some mal-tracking (patella slips out of the groove).  The examiner recommended an NSAID, continued use of a splint, aggressive PT and Hyalgen injections for the left knee pain.  The orthopedist documented pain and popping in both knees with physical exam findings of crepitus and pain now worse in the left knee.  The MEB NARSUM exam 11 months prior to separation and a month after right knee surgery focused solely on the right knee.  The examiner recommended an 8-month LIMDU ashore within CONUS with available orthopedics and PT.  The MEB NARSUM physical exam findings are summarized in the chart below.  The MEB NARSUM addendum approximately 6.5 months prior to separation documented complaints of continued right knee pain and popping along with left knee chronic pain.  The MEB NARSUM Addendum physical exam findings are summarized in the chart below.  The VA Compensation and Pension (C&P) exam approximately 9 months after separation documented that the CI required braces and orthotics for walking, had occasional right knee pain and had bilateral knee pain, stiffness; left knee warmth, swelling and tenderness and right knee weakness with moderate bilateral knee flares that occurred weekly with limited ROM which lasted three to seven days.  Plain film X-rays revealed degenerative changes of the left knee and a small effusion with degenerative changes in the right knee.

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Knee ROM (Degrees) | MEB 11 Mos. Pre-Sep | MEB Addendum 6.5 Mos. Pre-Sep | VA C&P 9 Mos. Post-Sep
| Left | Right | Left | Right | Left | Right
Flexion (140 Normal) | - | 90 | - | - | 110 | 125
Extension (0 Normal) | - | 20 | - | - | 0 | 0
Comment | 1 month post-surgery; using crutches; antalgic gait; moderate effusion | Pos. pain & crepitus, No effusion; No instability | Antalgic gait; Pos. edema, pain & crepitus | No crepitus; No Deluca | No instability; No crepitus
§4.71a Rating | 0% | 10% | 10%* | 10%* | 10%* | 10%*
*IAW VASRD §4.40 (Functional loss) or §4.59 (Painful motion)

The Board directed attention to its rating recommendation based on the above evidence.  

The PEB coded the bilateral knee pain condition under the single analogous code of 5099-5022 (periostitis) which is rated using VASRD code 5003 (degenerative arthritis), rated at 10%.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it also allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The evidence makes clear that the right knee was associated with more disability than the left one in this case.  It remains, however, that both knees were implicated by the narrative summary (NARSUM) and, the PEB adjudication designated each knee condition as Category II (those conditions that are contributing to the unfitting condition).  Board members agreed that each knee should be conceded as separately unfitting; and, that coding and rating features were logically identical.

The VA used the same coding for the patellofemoral syndrome bilateral knees condition and also rated at 10%.  The MEB addendum and the C&P exams met the 10% criteria rating for the right and left knee with application of VASRD §4.10 (Functional impairment), §4.40, and §4.59.  There were no compensable ROM measurements or pathology that would allow for the appropriate application of any knee specific VASRD code.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% coded 5299-5003 IAW VASRD §4.71a for the right anterior knee pain and 10% coded 5299-5003 IAW VASRD §4.71a for the left anterior 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 right anterior knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5003 IAW VASRD §4.71a.  In the matter of the left anterior knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5003 IAW VASRD §4.71a.  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 her prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Right Anterior Knee Pain | 5299-5003 | 10%
Left Anterior Knee Pain | 5299-5003 | 10%
COMBINED (w/ BLF) | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131023, 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 COMMANDER, NAVY PERSONNEL COMMAND
DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: 	(a) DoDI 6040.44
(b) PDBR ltr dtd 1 Jul 15 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 15 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 12 Jun 15  ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

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

a.	XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.

b. XXXXXXXXXXXXXXXXXXXX, former USN:  Placement on the Permanent Disability Retired List with a 70 percent disability rating (increased from 10 percent) effective date of discharge.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)

PD-2013-01978