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AF | PDBR | CY2012 | PD2012 01906
Original file (PD2012 01906.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1201906
BRANCH OF SERVICE: NAVY  BOARD DATE: 20130813
SEPARATION DATE: 20030929


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SK2/E-5 (Storekeeper 2nd Class) medically separated for bilateral knee problems. The CI had a history of persistent bilateral knee pain without a traumatic event. Despite periods of limited duty (LIMDU) and physical therapy, the knee condition could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards. He was placed on LIMDU twice accompanied by three Medical Evaluation Boards (MEB). A third and final MEB in October 2002 forwarded the bilateral knee condition, characterized as bilateral patellofemoral syndrome, status post (s/p) left patellar tendon to the Informal Physical Evaluation Board (IPEB) IAW 1850.4E. The MEB also identified and forwarded left shoulder superior labral tear, s/p arthroscopic repair and left hip greater trochanteric bursitis for IPEB adjudication. There were two addendums to the October 2002 MEB report. The first added obstructive sleep apnea (OSA), with the second adding essential hypertension, and nephrolithiasis for IPEB adjudication. The IPEB adjudicated bilateral patellofemoral syndrome (PFS) as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The IPEB adjudicated the s/p left patellar tendon debridement and arthroscopy with patellar tendonitis as a Category II condition, one that contributes to the unfitting condition. The IPEB also adjudicated essential hypertension; OSA; nephrolithiasis; left shoulder superior labral tears, s/p arthroscopic repair; and left hip greater trochanteric bursitis as Category III conditions, (conditions that are not separately unfitting and do not contribute to the unfitting condition). The CI appealed to the Formal PEB which kept the unfit rating of the IPEB for the knees, but chose to include the Category II condition with the unfitting condition. All of the Category III conditions remained the same. The CI made no further appeals and was medically separated.


CI CONTENTION: The CI elaborated no specific contention in his application.


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 FPEB – Dated 20030410
 VA - (1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Patellofemoral Syndrome, s/p l patellar tendon debridement and arthroscopy w/petallar tendonitis
 5299-5003 10% Patellofemoral Syndrome, L Knee, s/p arthroscopic patellar tendon debridement 5299-5019 10% 20030814
Patellofemoral Syndrome, R Knee, with mild degenerative changes 5299-5019 10% 20030814
L Shoulder Superior Labral Tear, s/p arthroscopic repair
 Category III Bursitis L Shoulder, w/degenerative joint disease, acromioclavicular joint, s/p slap repair 5010 10% 20030814
L Hip Greater Trochanteric Bursitis
 Category III Trochanteric bursitis, left 5019 10% 20030814
Trochanteric bursitis, right 5019 10% 20030814
Essential Hypertension
 Category III Hypertension 7101 10% 20030814
Nephrolithiasis
 Category III Nephrolithiasis 7508 0% 20030814
OSA
 Category III OSA 6847 50% 20030814
No Additional MEB/PEB Entries
 Other x 5 20030814
Combined: 10%
 Combined: 100%*
Derived from VA Rating Decision (VA RD ) dated 200 31223 ( most proximate to date of separation [ DOS ] ). *The 100% rating comes from 100% for Arterial Stenotic Disease, RLE, 7114.


ANALYSIS SUMMARY:

Bilateral Patellofemoral Syndrome. The CI developed pain in his bilateral knees without injury. X-ray and magnetic resonance imaging were normal. He was diagnosed clinically with bilateral PFS left worse than right. Failing conservative treatment including physical therapy (PT), anti-inflammatory medications, and activity restrictions, the CI underwent left knee arthroscopy on 8 May 2002, with debridement of synovium and patellar tendon, but had continued pain and was referred to the MEB. PT evaluations from 20 August 2002 to 22 October 2002 address left knee pain with walking and climbing stairs. The right knee was not a focus of clinical attention. The PT examination on 2 October 2002, recorded full active range-of-motion (ROM) of the left knee with intact strength. The Report of Medical Board narrative summary noted the CI continued to complain of knee pain and on exam was tender at the top of the patella. A rheumatology evaluation on 14 April 2003 recorded full ROM of both knees with bilateral patellar tenderness. During a follow up in the rheumatology clinic the CI reported the knee pains had improved. At the VA Compensation and Pension examination performed a month prior to separation, the CI reported pain in knees when walking one or two flights of stairs and inability to stand more than 30 minutes. On exam, he had a normal posture and gait and mild tenderness over the medial knee joints bilaterally. ROM of the knees were flexion 140 degrees bilaterally (normal) and extension 0 degrees bilaterally (normal) and there were no signs of knee instability bilaterally. There was no painful motion.

The Board directs attention to its rating recommendation based on the above evidence. The PEB combined the right and left knee conditions under a single 10% rating under 5299-5003 (analogously to degenerative arthritis) while the VA adjudicated separate 10% ratings for each knee. 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 service 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 first considered if each knee, having been de-coupled from the combined PEB adjudication, remained itself unfitting when considered alone. The evidence makes clear that the left knee was associated with more disability than the right one in this case. The disparity was such that the question is raised of whether the right knee was reasonably justified as separately unfitting. It remains, however, that both knees were considered to fail retention standards and both were profiled. Members agreed that it was reasonable to concede that each knee could be considered unfitting, but questioned whether separate ratings can be justified IAW §4.71a. There was no compensable ROM impairment, no painful motion, and no evidence for separate functional loss (VASRD §4.40) in the file. The VA decision to award 10% due solely to tenderness at the knee joint is a generous application of the VASRD and overly speculative, regarding: presumed painful motion or functional loss. There is no evidence of ligamentous instability, frequent effusions, or other ratable findings which would support a 10% rating under any of the §4.71a knee joint codes; or separate rating for instability. Furthermore there is no evidence in support of application of VASRD §4.59 (painful motion) to achieve the minimum 10% rating. Although provisions of VASRD §4.40 (functional loss) might be defended for achieving a 10% rating for the left knee, it is tenuous in support of a minimum rating for the right knee. Rating the bilateral condition analogously to code 5003, however, would achieve a 10% rating for “2 or more major joints” independently of other factors. The criteria for a 10% rating under 5003 for “X-ray evidence of involvement of 2 or more major joints” is supported by the bone scan findings. 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 of the bilateral patellofemoral syndrome 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 bilateral PFS 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
Bilateral Patellofemoral Syndrome
 5299-5003 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121113, 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 17 Dec 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective 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:
- XXXXXXXXXXXXXXXXXX former USN



                                                      XXXXXXXXXXXXXXXXXX
                                                     Assistant General Counsel
                  (Manpower & Reserve Affairs)

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