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AF | PDBR | CY2012 | PD2012 00229
Original file (PD2012 00229.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XX        BRANCH OF SERVICE: NAVY
CASE NUMBER: PD1200229   SEPARATION DATE: 20040827
BOARD DATE: 20130319


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Sailor, IC3/E-4(4746/Closed Circuit TV Technician), medically separated for left knee and right knee post-traumatic arthritis. While in training, the CI injured his left knee playing basketball in November 2001. Despite left knee anterior cruciate ligament (ACL) reconstruction with patella tendon in August 2002, the CI did not improve adequately with treatment to meet the physical requirements of his rating or satisfy physical fitness standards. He was placed on limited duty (LIMDU) twice, and then referred for a Medical Evaluation Board (MEB). The MEB forwarded left knee ACL tear, status post (s/p) ACL reconstruction with patella tendon; left knee medical meniscus tear, s/p arthroscopic medial meniscal repair; and left knee chondromalacia patella, s/p arthroscopic microfracture chondroplasty as medically unacceptable IAW SECNAVINST 1850.4E. The MEB forwarded no other conditions for Informal Physical Evaluation Board (IPEB) adjudication. The IPEB adjudicated the left knee ACL condition as unfitting, rated 20%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). Additionally, the IPEB identified nine conditions related to the left knee as Category II (conditions that contribute to the unfitting condition), and three right knee conditions as existing prior to service (EPTS). The CI appealed to the Formal PEB (FPEB), which changed the unfitting (Category I) conditions to left knee post-traumatic arthritis and right knee post-traumatic arthritis with a single rating at 20%. The FPEB also identified 11 knee conditions as Category II; 3 conditions as Category III (conditions that are not separately unfitting and do not contribute to the unfitting conditions); and 2 conditions as Category IV (conditions that do not constitute a physical disability), all identified on the rating chart below. The CI then submitted a Petition for Relief that was denied, with a hearing panel upholding the FPEBs decision. The CI was then medically separated with a 20% disability rating. The CI also submitted an application to the Board of Correction for Naval Records (BCNR) in late 2005, with a BCNR decision in January 2006. The BCNR upheld the FPEBs decision and stated that the sleep apnea, submitted for review, was not separately unfitting or ratable.
CI CONTENTION: The CI, through Counsel, submitted a three page petition outlining a request for disability retirement for his back, knees, asthma, and Obstructive Sleep Apnea (OSA) conditions.


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The ratings for the unfitting left and right knee conditions and their associated Category II diagnoses are addressed below. The contended back and asthma conditions (FPEB conditions) as well as the OSA condition (BCNR determination of not separately unfitting or ratable) are within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the BCNR.


 RATING COMPARISON :

Service FPEB – Dated 20040317
 VA (4 & 5 Mos. Post-Separation) – All Effective Date 20040828
Condition
 Code Rating Condition Code Rating Exam
Left and Right Knee, Post-Traumatic Arthritis 5299-5003 20% Post Traumatic Osteoarthritis, L Knee 5260-5010 10% 20050106
Post Traumatic Osteoarthritis, R Knee 5260-5010 10% 20050106
L Knee ACL, S/P ACL Reconstruction w/Patella Tendon Category II No Separate VA Entries: see 5260-5010 ratings above
L Knee Medial Meniscus Tear, S/P Arthroscopic … Meniscal Repair Category II No Separate VA Entries: see 5260-5010 ratings above
L Knee Chrondromalacia Patella, S/P Arthroscopic Microfracture Chondroplasty Category II No Separate VA Entries: see 5260-5010 ratings above
L ACL Deficient Knee, S/P ACL Reconstruction w/Bone Tendon Bone Autograft, DNEPTE Category II No Separate VA Entries: see 5260-5010 ratings above
L Knee Medical Meniscus Tear, S/P Repair, DNEPTE Category II No Separate VA Entries: see 5260-5010 ratings above
Recurrent L Knee Medical Meniscus Tear, DNEPTE Category II No Separate VA Entries: see 5260-5010 ratings above
L Knee Chondral Defect, S/P Microfracture Chondroplasty Category II No Separate VA Entries: see 5260-5010 ratings above
L Knee Loose Body, S/P Removal Category II No Separate VA Entries: see 5260-5010 ratings above
L Knee Trochlear Chondral Lesions Category II No Separate VA Entries: see 5260-5010 ratings above
R Knee ACL Deficiency Category II No Separate VA Entries: see 5260-5010 ratings above
R Knee, S/P Partial Meniscectomy Category II No Separate VA Entries: see 5260-5010 ratings above
Asthma Category III Asthma 6602 0% 20041223
Allegeric Rhinitis Category III No VA Entry
Complaint of LBP Category III Mechanical LBP Syndrome, a/w … L Knee 5237 10% 20050106
Nicotine Dependence Category IV No VA Entry
Exogenous Obesity Category IV No VA Entry
Sleep Apnea BCNR not unfitting Sleep Apnea 6847 50%* 20041223
↓No Additional MEB/PEB Entries↓
 0% X 0 / Not Service-Connected x 1 20050106
Combined: 20%
 Combined: 70%*
* See VARD of 20041108.


ANALYSIS SUMMARY:

Left and Right Knee, Post-Traumatic Arthritis (with associated Cat II Conditions). The combined the left knee post-traumatic arthritis and the right knee post-traumatic arthritis conditions under a single disability rating, coded analogously to 5003. Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. IAW DoDI 6040.44 the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ 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 Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. All of the various diagnoses/conditions impacting the individual knees were considered within the rating assessment for that knee as the impact on joint and disability were not divisible from each other.

The CI had chronic complaints of bilateral knee pain (left greater than right) with: left knee ACL reconstruction, recurrent meniscal tear and surgical repair, and chondromalacia patella/traumatic arthritis; and, right knee meniscal surgery with ACL deficiency and traumatic arthritis. The left knee was more acute at the time of the MEB and had been the principle disability condition for multiple LIMDU periods. The initial IPEB considered the left knee unfitting at 20%, with the right knee conditions under Category I as unfitting, but EPTS and not rated. The FPEB and subsequent determinations considered both knees unfitting and ratable together at 20%. At the time of the MEB addendum, 14 months prior to separation, the CI reported increasing left knee pain, required assisted ambulation (cane periodically) and used a brace. His right knee (prior injury) had become more symptomatic with both knees having significant pain and requiring intermittent use of narcotic pain medications. The MEB physical exam noted left knee range-of-motion (ROM) from 0-125 degrees (normal 0-140 degrees) with painful motion. The knee was laterally stable with a 1+ Lachman (4 mm) w/solid endpoint (anterior/posterior stability test for ACL). He had joint line tenderness of both knees. The right knee had full ROM with patella femoral crepitus, pain and trace effusion. Magnetic resonance imaging (MRI) indicated the right knee was ACL deficient, arthritic, with potential meniscal injury. Treatment notes following the MEB addendum included visits documenting left knee effusions with extension limited from 8-10 degrees, an emergency department assessment for left knee strain and narcotic pain medication, pain management visits and right knee pain with limited ROM to 5-110 degrees (normal 0-140 degrees). There was no evidence of muscle atrophy and motor testing was consistently normal. The record demonstrated a number of LIMDU periods and light duty due to the left knee, with scant evidence of incapacitating exacerbations, and no hospitalizations. At the VA Compensation and Pension (C&P) exam 5 months after separation, the CI reported bilateral knee pain (left greater than right), a history of instability or giving way/”locking” of the left knee with use of a brace and use of a cane at times (not at exam). Exam documented gait as “somewhat antalgic gait with slight left lower extremity limp.” The left knee had mild anterior-medial instability and painful ROM of 0-100 degrees (normal 0-140 degrees). MRI of the left knee indicated intact ACL graft and small recurrent medial meniscus tear. The right knee was tender with a small effusion and had ROM of 0-120 degrees. Right knee MRI indicated partial lateral meniscal tear and chronic proximal ACL disruption. Diagnosis was post-traumatic arthritis of bilateral knees.

The Board directs attention to its fitness and rating recommendation based on the above evidence. The Board considered if the left knee and right knee, having been de-coupled from the combined PEB adjudication, remained reasonably justified as unfitting; and if so, if the separated ratings would be in the CI’s favor (above the 20% combined rating). Both knees were considered unfit from the initial IPEB; however, they were combined into a single rating in later determinations when the initial EPTS/not ratable determination was changed. There was scant documentation that the right knee impacted duty performance prior to the MEB timeframe, and the left knee was consistently the primary focus of symptoms, limitations and treatment. The Board adjudged that the right knee, if separated, would rate no higher than 10% under any rating schema including coding for limited motion, meniscal symptoms or IAW VASRD §4.59 (painful motion). The Board deliberated at length if the left knee rose to the level of 20% under either code 5257 (Knee, other impairment of: Recurrent subluxation or lateral instability at "Moderate") or under code 5258 (Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint). Code 5257 (instability) was not well supported by the exam evidence, and the Board consensus was that there was insufficient evidence of recurrent “locking” to support the 20% 5258 meniscal rating, and the left knee would rate no higher than 10%.

The Board consensus was that the left knee and the right knee conditions either combined or separated would not warrant any rating(s) that would be more favorable than the combined 20% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knees condition.

Contended Conditions. The contended conditions adjudicated as not unfitting by the service were asthma, low back pain (LBP) and OSA. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the fitness adjudications. The Board’s threshold for countering 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. None of these conditions were considered as part of the CI’s LIMDU periods and none were implicated in the MEB history and physical, initial MEB or initial PEB.

Asthma Condition. The asthma condition was noted and addressed in detail by the January 2004 addendum to Report of Medical Board. The CI was evaluated for a history of episodic shortness of breath with exertion and was given the diagnosis of asthma following a positive methacoline challenge test (MCT). He had normal pulmonary function tests (PFT) for flow rates and was started on daily controller medication (Advair) with as needed bronchodilator medication (Albuterol). There was no evidence of hospitalizations or emergency treatment for asthma. The examiner indicated that the CI had been started on medication within the last 2 weeks with some improvement and that “It is felt that at the present time, his asthma does interfere with his ability to exercise and to carry out the duties of his rate and rank.” Asthma was adjudicated as not unfitting by the FPEB, the Petition for Relief and the BCNR. The Board considered that there was no performance based evidence of the CI’s inability to perform his duties due to the asthma condition and that his unfitting knee conditions likely overlapped with his inability to exercise. The Board considered the possibility of post-MEB entry worsening of the CI’s asthma condition as well as the tenants of DoDI 1332.38 for adequate performance until referral into the disability system. There was no indication from the record that asthma significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the fitness determination for the contended asthma condition.

Low Back Pain Condition. The LBP condition was noted in additional evidence submitted to the FPEB indicating ongoing chiropractic treatment. The FPEB noted that the CI's separation physical examination in June 2003 did not mention LBP. The diagnosis in treatment notes was Lumbago. There was no indication of any lower extremity motor or neurosensory loss. There were no incapacitating episodes documented. The LBP condition was adjudicated as not unfitting by the FPEB, the Petition for Relief and the BCNR. The Board considered that there was no performance based evidence of the CI’s inability to perform his duties due to the low back condition although it was possible that symptoms related to standing, walking and exercising overlapped with his unfitting knee conditions. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the fitness determination for the contended asthma condition.

OSA. The CI complained of nighttime poor sleep, apneic episodes and excessive daytime fatigue during the evaluations for asthma noted above. It was not a MEB or PEB condition and was not within scope for adjudication by the Petition for Relief. The record indicates the CI was using a continuous positive airway pressure (CPAP) breathing device since 2004. The BCNR adjudged that the CI’s OSA condition was not separately unfitting or ratable. There is no evidence in this case that OSA was associated with any duty restrictions or functional impairments. The Board considered that there were in-service complaints of excessive daytime sleepiness there was no performance based evidence of the CI’s inability to perform his duties due to excessive daytime sleepiness or use of CPAP. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the fitness determination for the contended OSA condition. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the fitness determination for the any of the contended conditions; and, therefore, no additional disability ratings are recommended.
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 bilateral knee conditions and IAW VASRD §4.71a, the Board by a vote of 2:1 recommends no change in the PEB adjudication. The single voter for dissent (who recommended a separate left knee 20% and right knee 10% rating) submitted the appended minority opinion. In the matter of the contended asthma, LBP and OSA conditions, the Board unanimously recommends no change from the determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration.
RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Left and Right Knee, Post-Traumatic Arthritis 5299-5003 20%
RATING
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20111231, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




                  XX
                  Acting Director
                  Physical Disability Board of Review
MINORITY OPINION: The minority member recommends the bundled bilateral knee condition be separated into an unfitting left knee at 20% and an unfitting right knee at 10%.

As detailed in the ROP above, the combined left and right knee, post-traumatic arthritis as the single unfitting condition, coded 5099-5003 and rated at 20%. The initial PEB determination of an unfitting left knee at 20% and an unfitting right knee as EPTS, was changed through the course of the disability evaluation system to combine both knees under the unfit 20% rating. The action officer (AO) considered that the service reasonably considered that each knee was unfitting. The AO agreed that the right knee would be appropriately rated at 10%. However, the left knee merited a separate rating of 20% under VASRD code 5010-5258. As the Hearing Panel of the PEB noted, there were “multifactorial components” that contributed to the arthritis. For the left knee, these included ACL repair; meniscal surgery and recurrent meniscal tear; and arthritic changes. There was an equivocal objective Service test for stability (MEB: 1+ Lachman with firm end point) and the VA exam stated “mild anterior-medial instability.” There was painful motion which is included under meniscal coding.

Code 5259 criteria are “Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint.” There was evidence of unspecified frequency of locking or give way, with frequent episodes of pain and frequent effusion of the left knee. The examiner’s statement of “He has pain and instability with activities and is prescribed a knee immobilizer for ambulation and a cane as needed” portrayed a disability picture closer to the 20% 5258 picture with findings sufficiently characteristic to identify the disease, the disability therefrom, and impairment of function consistent with the 20% disability level for the left knee.

In the matter of the bilateral knee condition, considering all of the evidence, there was sufficient reasonable doubt (IAW VASRD §4.3) for a 20% rating for the left knee when considering VASRD §4.7 (higher of two evaluations), §4.21 (application of rating schedule), §4.40 (functional loss), and §4.45 (the joints). The AO therefore recommends that each joint be separately rated as follows: an unfitting left knee condition coded 5010-5258 and rated 20% and an unfitting right knee condition, coded 5010-5259 and rated 10%, both IAW VASRD §4.71a.

The minority member recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Left Knee Post-Traumatic Arthritis with ACL and Meniscus Repairs 5010-5258 20%
Right Knee Post-Traumatic Arthritis with Meniscal Repair 5010-5259 10%
COMBINED (w/ BLF)
 30%


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 29 Apr 13

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 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:

                  - XX former USMC
 - XX former USMC
- XX former USN
        - XX former USMC
         - XX former USN
         - XX former USMC
                                                      XX
                                                     Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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