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AF | PDBR | CY2012 | PD2012 01266
Original file (PD2012 01266.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1201266
BRANCH OF SERVICE: MARINE CORPS         BOARD DATE: 20130605
SEPARATION DATE: 20020315


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (0341/Infantry) medically separated for a bilateral knee condition. The CI had a history of bilateral knee pain and was ultimately diagnosed with lateral compression syndrome of the knees. A lateral release was performed on the right knee, but postoperatively he continued to have pain. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was placed on limited duty (LIMDU) while in rehabilitation and referred for a Medical Evaluation Board (MEB). The bilateral knee condition, characterized as “bilateral knee pain, lateral compression syndrome of the patella status post right lateral release with persistent pain,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The PEB adjudicated the bilateral knee pain as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated.


CI CONTENTION: “They only rated my knee not my other disabilities was even addressed less than 3yrs after my medical discharge I was rated 100% by veterans Affairs”.


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 bilateral knee condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Board for Correction of Naval Records.


RATING COMPARISON :

Service IPEB – Dated 20020117
 VA - (1 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Knee Pain 5299-5003 10% S/P R/Knee Lateral Compression Release w/Residuals 5299-5260 10% 20020306
Left Knee Strain 5260 10% 20020306
No Additional MEB/PEB Entries
 Other x 5 20020306
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 2000315 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate 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. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The PEB combined the chronic bilateral knee pain conditions under a single Service 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; and, IAW DoDI 6040.44, the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation. 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. If the members judge that separate ratings are indicated IAW VASRD §4.7 (higher of two evaluations), however; each unbundled condition must be reasonably justified as separately unfitting to remain eligible for service rating. The Board noted there were no post-separation increases in VA ratings related to the knees (although other VA compensable diagnoses and ratings were effective from Jan 2004 and later).

Bilateral Knee Condition. The CI reported that his bilateral knee condition began in 1994 and that he felt that it was a result of prolonged hiking and vigorous training. The narrative summary (NARSUM) notes that the pain was made worse by running and ascending stairs and had progressed to the point where he could no longer run. He was diagnosed with lateral compression syndrome of both knees and because symptoms persisted in spite of conservative treatment, lateral release surgery was performed on the right knee on 5 May 2000. Following surgery, the CI was able to ride a bicycle, but post-exercise pain persisted bilaterally and he remained unable to run. At the MEB exam performed 5 months prior to separation, the CI reported that his baseline level of pain was minimal but that it increased with activity. The MEB physical exam noted a range-of-motion (ROM) of 0 degrees to 135 degrees on the right (0-140 degrees is normal). The exam of the right knee demonstrated medial retinacular pain, tenderness to palpation and normal patellar tilt, some quadriceps atrophy (although it was felt to have improved) and a 2+ medial and lateral grind. On the left, there was an abnormal patellar tilt and pain with compression of the patella with quadriceps firing. There was no evidence of quadriceps atrophy on the left.

At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported pain, weakness, stiffness, swelling, instability, locking, fatigue, and lack of endurance involving both knee joints. He reported that symptoms could last for hours or days and were brought on by activities such as prolonged walking, standing, sitting or climbing up or down stairs. In addition, he was not able to run, kneel or squat. He was taking Tylenol for pain as needed and sometimes used braces on both knees. Examination showed no evidence of heat, swelling, redness, effusion, drainage, abnormal movement, instability or weakness. ROM bilaterally was documented as flexion limited to 130 degrees (of 140 degrees), with pain at 125 degrees. Active extension was within normal limits at 0 degrees, with pain at 0 degrees. Drawer and McMurray’s tests were within normal limits bilaterally. ROM of the right and left knee joints was limited by pain, with pain having the major functional impact. X-rays of the knees were negative. The non-medical assessment (NMA) states that the CI was unable to perform the tasks related to his MOS as a mortarman for almost the past year because of his “debilitating” bilateral knee pain.

The Board directs attention to its rating recommendation based on the above evidence. The PEB characterized the condition as bilateral knee pain, lateral compression syndrome of the patella status post (s/p) right lateral release with persistent pain. It coded the condition analogously as 5299-5003 and assigned a disability rating of 10%. The VA addressing the knee conditions separately, characterized the left knee condition as left knee strain coded 5260 (limitation of flexion of the knee) and assigned a disability rating of 10% citing painful and slightly limited motion of the left knee. It characterized the right knee condition as s/p right knee lateral compression release with residuals. It coded the condition analogously as 5299-5260 and assigned a 10% disability rating to it as well, also citing painful and slightly limited motion of the right knee and asymptomatic scars.

The Board first considered if the right knee pain and the left knee pain, having been de-coupled from the combined PEB adjudication, remained unfitting as established above. Members agreed that the functional limitations as described in the NARSUM, the VA exam and as described in the NMA justified the conclusion that the right knee and left knee conditions were each integral to the CI’s inability to perform activities required of his MOS; and, accordingly a separate rating for each knee is recommended. The Board noted that the C&P exam which was proximal to the CI’s date of separation, demonstrated slight pain-limited motion and the examiner observed that ROM was limited by pain and that pain had the major functional impact on the CI. Members also considered the NMA which mentioned debilitating knee symptoms which prevented the CI from performing the tasks of his MOS as a mortarman. Members concluded that the VA’s characterization of the clinical conditions was consistent with the MEB findings and accurately reflected the pathology manifested in the record. The Board further concluded that a 10% disability rating should be assigned to each knee with concession of §4.59 (painful motion) or §4.40 (functional loss). A higher (20%) rating could not be assigned unless flexion were limited to 30 degrees or, extension of the leg were limited to 15 degrees or, if moderate subluxation or lateral instability of the knee, were demonstrated. Documentation consistent with the higher rating was not shown by the evidence of record. As an alternative coding strategy, the Board also considered 5262 (tibia and fibula impairment), but since there was no objective evidence of ankylosis, subluxation, instability, weakened movements or excessive fatigability, the Board concluded that the disability could be characterized as no more than “slight” and could be rated no higher than 10% under this coding option. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.59 (painful motion), and §4.40 (functional loss), the Board recommends that the bilateral knee condition be rated for two separate unfitting conditions as follows: right knee pain coded 5299-5003 rated 10% and left knee pain coded 5299-5003 rated 10%.


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 bilateral knee pain condition, the Board unanimously recommends that each joint be separately adjudicated as follows: an unfitting s/p right knee lateral compression release with residuals condition coded 5299-5003 rated 10%, and an unfitting left knee lateral compression syndrome coded 5299-5003 rated 10%, both IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration.


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

UNFITTING CONDITION VASRD CODE RATING
S/P R/Knee Lateral Compression Release w/Residuals 5299-5003 10%
Left Knee Lateral Compression Syndrome 5299-5003 10%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120601, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         XXXXXXXXXXXXXXXXXX
         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 10 Sep 13 ICO XXXXXXXXXXXXXXXXXX
(c) XXXXXXXXXXXXXXXXXX
(d) XXXXXXXXXXXXXXXXXX
(e) XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review 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 . XXXXXXXXXXXXXXXXXX , former USMC, XXX XX XX X X : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 1 March 2002.

         b. XXXXXXXXXXXXXXXXXX

         c. XXXXXXXXXXXXXXXXXX

d. XXXXXXXXXXXXXXXXXX
        
3. Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.
                                                      XXXXXXXXXXXXXXXXXX
                                                     Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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