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AF | PDBR | CY2012 | PD 2012 00585
Original file (PD 2012 00585.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX                  CASE: PD-2012-00585
BRANCH OF SERVICE: MARINE CORPS           BOARD DATE: 20140627
SEPARATION DATE: 20020131


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve LCpl/E-3 (0311/Rifleman) medically separated for a left knee condition. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty satisfy physical fitness standards. He was placed on limited duty and underwent a Medical Evaluation Board (MEB). The knee condition, characterized as “left anterior knee pain syndrome” was the only condition submitted to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The PEB found the left knee condition unfitting, and rated it 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals at that time and was medically separated.


CI CONTENTION: “The Veterans Affairs in North Port medical center could not help me with pain located in both my left and right knees. It has been over 10 years with this problem and my life has been affected by this condition!!”


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. The contended right knee was not on the MEB or PEB and is not with the Board’s defined DoDI 6040.44 purview. Any conditions or contention not requested in this application, or ortherwise outside the Board’s defined scope of review, remain eligible for consideration by the Board for Correction of Naval Records.


 RATING COMPARISON :

Navy PEB – dated 20020117
 VA – (Exam ~16 mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Left Anterior Knee Pain 5299-5003 10% Chronic Left Knee Pain 5257 10% 20030401
Other x 0 (Not in Scope)
 Other x 4 20030401
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 200 30520 (most proximate to date of separation [ DOS ] )


ANALYSIS SUMMARY: 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 of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates DVA 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. While other symptoms and conditions may have been present, compensation can only be offered for those conditions that cut short a member’s career and then only to the degree of severity present at the time of separation. The DVA, 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.

Left Knee Condition. This Marine injured his left knee in 1999. Magnetic resonance imaging showed a small effusion with possible patellar chondromalacia, but no significant ligament or meniscal injury. He was treated with medications and physical therapy. However, his knee symptoms persisted and an MEB was initiated. The MEB narrative summary was dated 1 October 2001. Physical examination of the left knee revealed no joint effusion or ligamentous laxity. There was some patello-femoral joint compression tenderness, but no medial or lateral joint line tenderness. Range-of-motion testing showed 130 degrees of flexion. The CI was separated from service on 31 January 2002.

The Board carefully examined all available evidence. Since the MEB physical examination was just 4 months prior to separation, it had significant probative value. At that exam, there was 130 degrees of flexion. The Board determined that the left knee condition was essentially non-compensable based solely on the VASRD §4.71a codes for loss of knee motion (5260 & 5261). However, based on VASRD §4.40 (functional loss), a part of the musculoskeletal system which becomes painful on use must be regarded as seriously disabled. After due deliberation, the Board determined that a rating of 10% was warranted, due to pain which occurs with use of the left knee. The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the knee condition. The other VASRD codes that were considered did not result in a higher rating, since the record did not show evidence of a significantly disabling knee abnormality which would justify a higher rating. After due deliberation, 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 of the left knee condition.


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, 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 20120604, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXXX
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 15 Dec 14

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:
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC


                                                      XXXXXXXXXXXXXX
                                            Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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