RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE marine corps

CASE NUMBER: PD1100260 SEPARATION DATE: 20061031

BOARD DATE: 20120424

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCPL/E-3 (0311, Rifleman), medically separated for bilateral knee condition. He did not respond adequately to conservative or surgical treatment and was unable to fulfill the physical demands within his Military Occupational Specialty (MOS) or meet physical fitness standards. He was placed on limited duty (LIMDU) and underwent a Medical Evaluation Board (MEB). Patellar tendinitis was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions appeared on the MEB’s submission. Other conditions included in the Disability Evaluation System (DES) packet will be discussed below. The PEB adjudicated bilateral patellar tendinopathy with fat pad syndrome that has failed operative intervention, as unfitting, rated 10% with application of SECNAVINST 1850.4E and the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION: “I’m a veteran of the United States Marine Corps that was severely injured in Iraq in which I received a Purple Heart. However, I was medically discharged from the Marines due to having knee problems throughout Marine Corps career that started in boot camp, and continued to get worse not for injuries sustained in Iraq. After returning home from Iraq I eventually had surgery on both my right and left knee a couple months apart. However, that only made my knees worse to the point it’s now unbearable. To this day April 5, 2011 the pain is as worse as it’s ever been.” He continues on to discuss in detail his knee limitations, specifically, how it impacts playing with his 4 year old daughter. He also revealed his frustration with the lengthy PEB process which took over a year and a half for a decision and for this reason elected not to appeal. He additionally lists all of his VA conditions, pending VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the DES operates. 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. That role and authority is granted by Congress to the Department of Veterans' Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. The Board also acknowledges the CI's contention suggesting that ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the military (but later determined to be service-connected by the DVA). 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. The DVA, however, is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board finally acknowledges the CI’s assertions that the MEB process was lengthy which is why he elected not to appeal. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to asserted improprieties in the disposition of a case. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation. It must also judge the fairness of PEB fitness adjudications based on the fitness consequences of conditions as they existed at the time of separation.

Bilateral Knee Condition. The CI had chronic bilateral tendonitis for over 3 years which ultimately led to left knee surgery in February 2006 and right knee surgery in April 2006. He had temporary relief but once he returned to full duty there was a resurgence of bilateral knee pain. He was on multiple LIMDUs which identified right and left knee patellar tendonitis. The non-medical assessment (NMA) documented that he missed 6 hours per week for appointments, and his last passing PRT was in May 2004. Neither the LIMDU nor the NMA documented any other health condition for the CI. There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation.

The narrative summary (NARSUM) completed for the MEB physical demonstrated the following physical exam findings; no joint effusion or erythema, stable ligamentous knee exam, midline scars over patella tendons with tenderness of the patella tendon as well as swelling and tenderness of the fat pads bilaterally and normal x-rays. The VA Compensation and Pension (C&P) examiner documented knee symptoms to include; pain in the right greater than the left knee which averaged 7/10 on an intensity rating scale of 1/10, flare-ups of pain with changes in weather to an intensity of 10/10, stiffness, weakness, swelling, instability in the right greater than the left knee, and numbness of the lateral aspect of the right knee, with no recurrent subluxation or dislocation of the right or the left knee. Ice helped the bilateral knee condition and there was no use of assisted devices or a brace for either knee. The examiner further documented the CI worked as a security guard without impairment and was not taking pain medications. The physical exam demonstrated no joint tenderness or effusion, normal ligament and cartilage testing, bilateral scars, and a normal gait. X-rays revealed minimal bilateral degenerative joint disease of the medial compartments.

The Board directs its attention to its rating recommendations based on the evidence just described. The PEB and VA chose different coding options for the condition. The PEB combined the left and right knee conditions as a single unfitting condition, coded analogously to 5003 and rated 10%. The Board notes the MEB exam did not establish x-ray findings of degenerative arthritis or a compensable limitation of motion but did establish swelling of each knee to meet the criteria for the 5003 code. The Board notes that “bundling,” the combining of conditions under a single code, is permissible under VASRD code 5003. The VA rated the patellofemoral syndrome of each knee separately due to a non compensable ROM loss of each knee and residual post-operative pain of the right and left patella tendon and chose to code analogous to 5259 (cartilage, semilunar, removal of, symptomatic) which the Board agreed was clinically appropriate. The Board considered VASRD §4.7 (higher of two evaluations) during its deliberation which directs the evaluator to assign the higher of two valid ratings if the disability picture more nearly approximates the criteria. The Board majority agreed the disability picture warranted a separate rating for each knee. There was no viable approach to a higher rating for either knee which was countenanced by the VASRD. All evidence considered, the Board recommends that each knee be separately adjudicated as unfitting, coded 5299-5259 and rated 10%.

Other Contended Conditions. The CI’s application asserts that compensable ratings should be considered for those conditions related to his injury in Iraq for which he claimed he received the Purple Heart. All of these conditions were reviewed by the action officer and considered by the Board. The Board acknowledges evidence of a citation for the Combat Action Ribbon award but did not find evidence of a citation for the Purple Heart award. The Board also acknowledges the CI suffered a level II concussion from an IED blast on 20 November 2004, but notes evidence of a return to full duty 6 days later, and a successfully completed Iraq tour in February 2005. The residual conditions which the CI asserts are posttraumatic stress disorder (PTSD), migraine headaches, traumatic brain injury (TBI) and bilateral tinnitus were neither evaluated nor diagnosed while in service but were diagnosed by the VA after separation. The Board notes that the scope of its recommendations does not extend to conditions which were not diagnosed or in evidence at the time of medical separation or in the core DES file. This includes conditions which may have had early manifestations during active service, since such sub-clinical conditions cannot be correlated with a fitness determination requisite for a rating. By policy and precedent the Board has limited its jurisdiction for recommending unadjudicated conditions as unfitting and subject to additional separation rating to those conditions which are evidenced in the core DES file. The core DES file consists of the MEB referral document, the PEB adjudication document, the NARSUM (including any addendums or referenced examinations), the MEB physical exam, the NMA, the LIMDU and any written appeals or internal DES correspondence. Contended conditions which are not eligible for Board recommendations 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 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. As discussed above, PEB reliance on SECNAVINST 1850.4E for rating bilateral knee condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the bilateral knee condition, the Board by a vote of 2:1 recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5299-5259 and rated 10%; and, an unfitting left knee condition coded 5299-5259 and rated 10%; both IAW VASRD §4.71a. The single voter for dissent (who recommended no recharacterization) did not elect to submit a minority opinion. The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110405 w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

President

Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

COMMANDER, NAVY PERSONNEL COMMAND

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44

(b) PDBR ltr dtd 7 May 12 ICO XXXXXXXXXXXXXXX

(c) PDBR ltr dtd 22 May 12 ICO XXXXXXXXXXXXXXX

(d) PDBR ltr dtd 10 May 12 ICO XXXXXXXXXXXXXXX

(e) PDBR ltr dtd 3 May 12 ICO XXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the PDBR 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. former USMC: Placement on the Temporary Disability Retired List for the period 1 December 2003 through 30 November 2008 with a 60 percent disability rating (increased from 40 percent) with final disability separation on 1 December 2008 with a 20 percent disability rating.

b. former USN,: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective 31 October 2001.

c. former USMC: Placement on the Permanent Disability Retired List with 30 percent disability rating (increased from 10 percent) effective 30 August 2009 .

d. former USMC: Disability separation with entitlement to disability severance pay with a rating of 20 percent (increased from 10 percent) effective 31 October 2006.

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

Assistant General Counsel

(Manpower & Reserve Affairs)