RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Navy

CASE NUMBER: PD1100300 SEPARATION DATE: 20030403

BOARD DATE: 20120327

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty BM3/E-4 (Boatswains Mate) medically separated for a left knee condition that began in 1998. He did not respond adequately to surgical treatment and extensive physical therapy, and was unable to perform within his Rating or meet physical fitness standards. He was placed on limited duty (LIMDU) and underwent a Medical Evaluation Board (MEB). Left ACL (anterior cruciate ligament) deficiency, status post reconstruction, and left medial meniscus tear, status post repair, were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. One other condition, as identified in the rating chart below, was forwarded on the MEB submission. The PEB adjudicated the left ACL insufficiency status post repair condition as unfitting, rated 10% IAW the Veterans Administration Schedule for Rating Disabilities (VASRD). Additionally, left medial meniscus tear was rated as category II: conditions that contribute to the unfitting conditions; and myofascial thoracic pain as category III: conditions that are not separately unfitting and do not contribute to the unfitting condition. The CI made no appeals and was medically separated with a 10% disability rating.

CI CONTENTION: The CI states: “As a Boatswains Mate, my primary occupation was as a laborer. My in service injury made me unfit for Naval Service, and continues to keep me from aquiring [sic] and maintaining employment.” He additionally lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

*Initially rated 10%; increased to 20% on 3 May 2006 effective 4 April 2003; changed to code 5242 on 5 June 2007

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 service disability entitlements as those under which the Disability Evaluation System (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. 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. The Department of Veterans’ Affairs (DVA); however, is empowered to compensate 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 evaluates VA 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’s threshold for countering DES fitness determinations is higher than the VASRD §4.3 reasonable doubt standard used for its rating recommendations; but, remains adherent to the DoDI 6040.44 “fair and equitable” standard. Any changes in the VASRD rating criteria following the CI’s separation are not applicable in this case.

Left Knee Condition. The CI experienced a left knee injury in 1998 prior to entering the service that resulted in symptoms of instability and episodes of locking. In 2001 he experienced an exacerbation and was subsequently found to have tears of the ACL and medial meniscus. These injuries were repaired in August 2001 but he continued to have persistent painful symptoms despite extensive rehabilitation. A physical therapy evaluation (22 July 2002, 9 months prior to separation) documented 0 degrees of knee extension (normal to 0 degrees) and flexion of 130 degrees (normal to 140 degrees). The narrative summary (NARSUM) examiner (19 November 2002) reported that the CI experienced left knee pain with prolonged standing or heavy lifting and that pain prevented running. He denied symptoms of instability. The left knee was found to have a full range of motion (ROM) and no valgus or varus (side to side) instability. An anterior drawer and Lachman’s test were positive. These are consistent with some laxity, but not instability, of the ACL. Routine x-rays of the knee were remarkable only for post-surgical changes. The VA Compensation and Pension (C&P) examiner (1 July 2003, 3 months after separation) reported mild residual left knee pain and discomfort and that the CI used a brace for support.

There was no edema, but mild tenderness and crepitus of the left knee was present. Mild discomfort upon movement of the knee was observed, but no lateral instability was noted. Extension was 0 degrees and flexion, 135 degrees. A C&P exam performed on 28 January 2004 (10 months after separation) reported the CI was not working because he could not perform heavy labor activities, but that he could perform normal daily activities. He reported normal mobility and did not require a brace or a cane. Normal stance and gait were present.

The PEB and VA chose different coding options for the condition, but this did not bear on rating. There is no evidence that DoD or service specific regulations or policies were applied. The PEB assigned a 10% rating under the 5257 code for “knee, other impairment of.” The VA used an analogous limitation of flexion code (5260) and assigned a 10% rating despite non-compensable limitation of motion. Sufficient evidence is present in the DES to support a 10% rating, but no higher rating, with use of §4.40 (functional impairment), or §4.59 (painful motion). Because of the history of mensal injuries, the Board considered a 20% rating under the 5258 code (dislocated semilunar cartilage), but agreed that the required frequent episodes of locking, pain and effusion into the joint were not present. The Board also debated if a 20% rating was justified under the 5257 code used by the PEB, but agreed that any history of recurrent subluxation or lateral instability did not approach the “moderate” degree required for the higher rating. Likewise, under the 5262 code (“tibia and fibula, impairment of”), malunion with moderate knee disability was not present; thus a 20% rating was not justified on this basis. The Board further considered if dual coding of the knee condition was justified, given that there was a history of painful motion and of instability. While symptoms of instability and locking were present prior to surgical repair, there is no evidence these symptoms were present after surgery. Furthermore, although the presence of some ACL laxity was noted on examination, the CI specifically denied symptoms of instability. The Board concludes therefore that dual coding in this case is not justified. Left medial meniscus tear status post repair was designated as a category II condition (conditions which contribute to the unfitting condition but are not separately ratable) by the PEB, and was appropriately subsumed under the left knee condition. All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the left knee condition.

Other PEB Conditions. The other condition forwarded by the MEB and adjudicated as not unfitting by the PEB was myofascial thoracic pain. The NARSUM examiner reported that upper and lower back pain was present for 4 or 5 years. Evaluation in 2001 discovered lumbar disc disease and spinal stenosis which caused low back pain that was treated with physical therapy and pain medication. Clinical notes described the pain as intermittent. The lumbar condition carried an attached duty limitation. Although a line officer commented that back pain interfered with heavy lifting, the non-medical assessment (NMA) only stated that the knee condition prevented performance of duties without reference to a back condition. A VA examination 3 months after separation noted mild decreased range of motion and pain. A follow-up VA exam 10 months after separation noted the CI could perform normal daily activities and further stated that aside from flares once or twice per year lasting 5 days, he could “stand or walk all day long.” The thoracolumbar spine condition was reviewed by the action officer and considered by the Board. There was no indication from the record that this condition significantly interfered with satisfactory performance of duty requirements. All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudication for the stated condition.

Other Contended Conditions. The CI’s application asserts that compensable ratings should be considered for hemorrhoids. This condition was reviewed by the action officer and considered by the Board. There was no evidence for concluding that it interfered with duty performance to a degree that could be argued as unfitting. The Board determined therefore that the stated condition was not subject to service disability rating.

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 thus has no 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. 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 §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the myofascial thoracic pain condition, the Board unanimously recommends no change from the PEB adjudication as not unfitting. In the matter of the hemorrhoid condition 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. 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 therefore recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110418, 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)