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AF | PDBR | CY2012 | PD2012 01372
Original file (PD2012 01372.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxx       CASE: PD1201372
BRANCH OF SERVICE: NAVY  BOARD DATE: 20130514
SEPARATION DATE: 20021213


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CM1/E-6(5805/Heavy Mobile Equipment Mechanic) medically separated for a left knee and back condition. The knee condition began in December 1996; with a fall in 1987 that caused the back condition. The knee and back conditions could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards. He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). The knee and back conditions, characterized as chondromalacia patella, left knee status post (s/p) debridement; and spondylolysis L5, bilateral, were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The PEB adjudicated chondromalacia patella, left knee, status post (s/p) surgical debridement with persistent pain and spondylolysis, L5, bilateral, symptomatic, as unfitting, rated 10% and 10% respectively, with a pplication of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI concurred with the PEB, but requested retention on active duty in a permanent LIMDU status. That request was denied and the CI was medically separated with a 20% combined disability rating.


CI CONTENTION: The CI writes: “I only got 10% for my left knee and is much worse. I only got 10% for my back and is much worse. I never got any rating for my right knee. And the VA has operated on it now. I never got any rating for my depression. The Navy knee about the right knee. The Navy knee about the depression. They gave me meds. The VA has rated me for right, left knee, back & depression.”


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 ratings for the unfitting left knee and back conditions are addressed below. The right knee and depression are not 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 respective Service Board for Correction of Naval Records.













RATING COMPARISON:

Service IPEB – Dated 20020611
 VA - (4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
CHONDROMALACIA PATELLA, L KNEE, S/P SURGICAL DEBRIDEMENT W/PERSISTENT PAIN
 5299-5003 10% CHRONDROMALACIA PATELLA, L KNEE, S/P SURGICAL DEBRIDEMENT 5259 10% 20030405
SPONDYLOLYSIS, L5, BILATERAL, SYMPTOMATIC
 5299-5295 10% LOW BACK PAIN SECONDARY TO SPONDYLOLYSIS, L5, BILATERAL 5293-5295 10% 20030405
No Additional MEB/PEB Entries
 Other x 3 20030405
Combined: 20%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 30626 ( 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 condition continues to burden him; but, must emphasize that the Disability Evaluation System (DES) 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 Board also acknowledges the CI’s assertions that his disability disposition did not include the right knee or depression. However, it is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the respective Service Board for the Correction of Naval Records or the United States judiciary system.

Left Knee Chondromalacia Patella. The CI first developed chronic left knee pain in December 1996 following a basketball game, although there was no history of specific injury. X-rays showed mild degenerative changes. Recurrent pain led to arthroscopic exploration of the left knee in June 2001, which found Grade IV chondromalacia of the intercondylar notch and patella; a microfracture procedure was performed at that time. Subsequent magnetic resonance imaging (MRI) revealed findings consistent with chondromalacia of the inferior pole of the patella. A physical therapy exam, 6 weeks after surgery, reported bilateral range-of-motion (ROM) of 0-130 degrees (normal 0-140). At the MEB exam in January 2002 (11 months prior to separation) the CI reported an inability to go up and down stairs without pain or to engage in strenuous physical activity, such as heavy lifting. Physical examination revealed no signs of ligament instability. Pain with patellofemoral compression and moderate crepitus with flexion and extension were present. At the VA Compensation and Pension (C&P) exam in April 2003 (4 months after separation) the CI reported bilateral knee pain, with right knee pain greater than the left. The examiner noted no left knee edema or calf pain. Strength at the knees was 5/5 (normal). ROM was not reported.

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis). The VA assigned a maximum 10% rating under code 5259 (cartilage, semilunar, removal of, symptomatic). There was no limitation of motion in evidence to justify a compensable rating under the 5260 or 5261 codes (limitation of flexion and extension). Instability and dislocated semilunar cartilage were absent, thus rendering the 5257 and 5258 coding pathways inapplicable. The Board agreed there was sufficient evidence of painful motion in this case to warrant a 10% rating IAW VASRD §4.59. 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 left knee chondromalacia patella condition.

Spondylolysis, L5, Bilateral, Symptomatic. The 2002 VASRD coding and rating standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards on 26 September 2003, and were identical to the interim VASRD standards used by the VA in its rating decision. The ratings prior to 26 September 2003 were based on a judgment as to whether the disability was mild, moderate or severe. The current standards are grounded in ROM measurements. IAW DoDI 6040.44, this Board must consider the appropriate rating for the CI’s back condition at separation based on the VASRD standards in effect at the time of separation. The CI’s complaint of low back and bilateral radicular pain related to a history of a fall that occurred in 1987; the symptoms waxed and waned and were not predictably responsive to conservative treatment. X-rays of the lumbosacral spine (October 1998) showed bilateral L5 spondylolysis without spondylolisthesis; and mild degenerative disc disease (DDD) at L3-4. An MRI of the lumbosacral spine (March 1999) showed a bilateral pars interarticularis fracture of L5; the left fracture was angulated medially with a mass effect on the thecal sac and moderate narrowing of the left L5-S1 neural foramen; the right fracture appeared healed without abnormality. There was also a broad-based disc bulge and DDD at L4-5 and L5-S1. At an orthopedic surgery consultation (July 2000), the CI reported back pain and pain in both legs, right greater than left. The exam found full forward flexion and extension, and no spasm or tenderness. The CI reported lumbosacral pain with axial compression and with simultaneous rotation of pelvis and shoulders. Straight leg raise (SLR) was negative while seated and positive in the supine position. Lower extremity strength was normal bilaterally. The examiner opined that the low back pain “may be result of facet arthrosis, but I see no reason for radiculopathy. 4 Waddell’s Signs are positive, suggesting much of the pain may be non-organic in nature.” A nerve conduction velocity (NCV) and electromyography (EMG) study (July 2000) of the right lower extremity found no evidence of active lumbar radiculopathy or neuropathy. The CI was not experiencing back pain at the time of the MEB exam (11 months prior to separation), but stated that his back could “go out” with strenuous activity. The physical exam found “essentially full range of motion” of the lumbar spine and no abnormal motor, sensory, or deep tendon reflex (DTR) findings. The C&P examiner (4 months after separation) found tenderness over the lumbar paraspinal musculature and right sacroiliac joint. Lower extremity strength and sensation were normal. Toe-heel gait was normal. Knee X-rays were normal.

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under an analogous 5295 code (lumbosacral strain). Under a combination 5293 (intervertebral disc syndrome) and 5295 code, the VA also assigned a 10% rating. The Board agreed that “characteristic pain on motion” is reasonably conceded, given the history of activity-limiting pain, and thus a 10% rating under the 5295 is defensible. There was no muscle spasm and loss of lateral spine motion in evidence to support the next higher rating under that code. Board members also agreed that evidence of limitation of motion or incapacitating episodes were absent, and therefore higher ratings under the 5292 code (spine, limitation of motion of, lumbar) or 5293 code (intervertebral disc syndrome) were not warranted. 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 L5 spondylolysis 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 chondromalacia patella condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the
matter of the L5 spondylolysis condition and IAW VASRD §4.71a, 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Left Knee Chondromalacia Patella
5299-5003 10%
Symptomatic L5 Spondylolysis
 5299-5295 10%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120728, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         xxx
         Director of Operations
         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 12 Jun 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:
- former USMC
- former USN
- former USMC
- former USMC
- former USMC
- former USMC
- former USMC
- former USN



                                                     
                                            Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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