RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: marine corps

CASE NUMBER: PD1001153 SEPARATION DATE: 20030715

BOARD DATE: 20120315

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SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (3043/Supply Administration and Operations Clerk), medically separated for right knee patellofemoral syndrome (PFS). Bilateral knee pain began insidiously in 1997 without history of injury. Conservative management failed to resolve the pain; an magnetic resonance imaging (MRI) in 2001 revealed a right knee partial anterior cruciate ligament (ACL) tear and a possible medial meniscal tear. Despite disagnostic and therapeutic arthroscopy twice, she continued to experience right knee pain and was unable to perform within her Military Occupational Specialty (MOS) or meet physical fitness standards. She was placed on limited duty (LIMDU) and underwent a Medical Evaluation Board (MEB). The PFS, right knee, was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. No other conditions appeared on the MEB submission. Other conditions included in the Disability Evaluation System (DES) packet will be discussed below. The PEB adjudicated right knee PFS as unfitting, rated at 10%, with probable application of SECNAVINST 1850.4E, DoDI 1332.39, and Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION: “The condition still exist and continue to impact my daily life. There has been multiple re-injuries that has stemmed from just regular everyday activities. I currently have to take pain medication often on a regular basis over the years for pain from my condition. The regular consumption of pain medications over the years has lead to other conditions that has not improved and add to day to day tribulations. I now have acid reflux due to the consumption of pain medications on a regular basis. Also, there were other conditions that were not considered during my medical board evaluation, such as hypertension, Carp atonal (sic), and migraines.” She additionally lists all of her VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

*Increased from 0% to 20% effective 20050419 based on a later C&P Exam.

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests service ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the DES operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. It is a fact, however, that the DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the DVA.

Right Knee Condition. There was one goniometric range-of-motion (ROM) evaluation in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation.

The CI first noted a long history of right greater than left knee pain in 1997. She was managed conservatively and next seen in 2000 when right PFS was diagnosed. Again, she was managed conservatively, but had persistent pain and a positive McMurray test on the right which was suspicious for a right medial meniscal tear (MMT). An MRI revealed a partial tear of the anterior cruciate ligament (ACL), but did not confirm a MMT. Diagnostic and therapeutic arthroscopy treated the MMT and ACL tear and removed redundant plica. She was placed on LIMDU. She initially responded well, but was rear-ended in a motor vehicle accident and struck her knee on the dash, re-injuring it. She continued to have pain despite physical therapy (PT). A second MRI showed degeneration of the posterior horn of the lateral meniscus of the right knee. She again had arthroscopy which showed a lateral meniscal tear; this was debrided and medial plica was excised. At a follow-up visit 3 months later, 11 months prior to separation, she was noted to have normal ROM and a stable exam. She was released without restrictions and advised to advance activities as tolerated, but was never able to meet duty requirements. She was referred to an MEB in November 2002, 8 months prior to separation, for persistent PFS of the right knee.

The CI was evaluated in orthopedics for the MEB on 26 November 2002, 8 months prior to separation. The CI noted that she had pain going up and down stairs, with deep knee bends, flexion, prolonged sitting, and denied locking, instability, and popping. On exam, she had free ROM, tenderness to palpation at the quadriceps insertion and patellar tendon, no mechanical or meniscal signs, no apprehension. Imaging was significant only for post-operative symptoms. The VA Compensation and Pension (C&P) exam was completed 9 months after separation. The CI gave a history of infrequent locking and pain with prolonged walking or standing. On exam, she was noted to have a normal gait without the use of a cane or crutches. The ligaments were stable and ROM full. There was no effusion, swelling, quadriceps atrophy, retropatellar crepitation or patellar instability. Lateral joint line tenderness was noted. Imaging was deferred due to her pregnancy.

The PEB rated the right knee at 10% and coded it 5299-5003 as analogous to degenerative arthritis. The VA coded the right knee as 5299-5257, analogous to other impairment of the knee with recurrent subluxation or lateral instability and rated it at 0%, but later raised it to 20% based on worsening symptoms. This was effective 19 April 2005, almost 9 years after separation. The Board notes that the MEB and initial VA C&P exams bracket the date of separation. No use of assistive devices was noted, there was no abnormal gait, meniscal signs, instability or effusion. ROM was normal and ligaments stable. The Board considered the various coding options of 5003, 5257, 5258 (dislocated semilunar cartilage) and 5259 (semilunar cartilage removal). It notes that there is no path to rate the knee higher than 10% with the possible exception of 5258; however, the code 5258 code requires both an effusion and frequent locking which the CI does not have. After due deliberation, in consideration of the totality of the evidence, and IAW §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change from the PEB fitness adjudication for the right knee condition.

Other Contended Conditions. The CI’s application asserts that compensable ratings should be considered for hypertension, carpal tunnel, migraines, scars from bilateral breast reduction surgery and right knee surgery, and left knee pain. Hypertension was well controlled. Carpal tunnel syndrome was not diagnosed while on active duty. There are no visits in the medical record for headaches the last year on active duty and no evidence that the mammoplasty or knee surgery scars interfered with the wear of duty uniforms or equipment. Left knee pain was not mentioned in the DES file. Hypertension, migraines, and scars were reviewed by the action officer and considered by the Board. There was no evidence for concluding that any of these conditions interfered with duty performance to a degree that could be argued as unfitting. The Board determined therefore that none of these stated conditions were subject to disability rating. Additionally, tears of the medial and lateral menisci of the left knee were noted prior to separation. Conservative management was recommended and surgery if this failed. At the VA C&P exam, it was noted that she had neither occupation nor leisure restrictions from her left knee. However, neither this left knee condition nor carpal tunnel syndrome was mentioned in the DES. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating. Contended conditions which are not eligible for Board consideration on this basis remain eligible for submission to the Board for Correction of Naval Records (BCNR).

Remaining Conditions. No other conditions were noted in the narrative summary (NARSUM), identified by the CI on the MEB physical, or found elsewhere in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation 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. In the matter of the right knee PFS condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. The Board prefers the 5259 coding route, but sees no point in recommending a change in code as the rating is unaffected. In the matter of the hypertension, migraines, scars or any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20100930, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

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 2 Apr 12

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandum, approve the recommendations of the PDBR the following individuals’ 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:

Assistant General Counsel

(Manpower & Reserve Affairs)