RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  NAVY  
SEPARATION DATE:  20040305 

 
NAME:   
CASE NUMBER:  PD1200527 
BOARD DATE:  20121204 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  Petty  Officer  Second  Class/E-5  (IT2/Information 
Systems Technician), medically separated for a left knee tibial plateau fracture.  The condition 
began as a result of injury in 2002.  Despite initial surgery, rehabilitation and later arthroscopy, 
the CI did not improve adequately 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 MEB forwarded tibial plateau fracture, healed, and full thickness 
skin and subcutaneous defect, anterolateral left thigh, to the Physical Evaluation Board (PEB) as 
medically unacceptable IAW SECNAVINST 1850.4E.  No other conditions appeared on the MEB’s 
submission.  The PEB adjudicated the healed tibial plateau fracture condition as unfitting, rated 
10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD); and full 
thickness skin and subcutaneous defect, anterolateral left thigh, as Category III:  conditions that 
are not separately unfitting and do not contribute to the unfitting condition.  The CI made no 
appeals, and was medically separated with a 10% disability rating. 
 
 
CI  CONTENTION:    “My  conditions  has  gotten  worst.    I  have  gone  from  20%  to  80%  and  I’m 
requesting 100%.” 
 
 
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 full thickness skin and subcutaneous 
defect of the left thigh condition requested for consideration and the unfitting tibial plateau 
fracture  condition  meet  the  criteria  prescribed  in  DoDI  6040.44  for  Board  purview,  and  are 
accordingly  addressed  below.    The  remaining  conditions  rated  by  the  VA  at  separation  and 
listed on the DA Form 294 application are not 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 Board for Correction of Naval Records. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Condition 

Tibial Plateau Fracture 
Full-Thickness Skin and 
Subcutaneous Defect, 
Anterolateral Left Thigh 

Rating 
10% 

Code 

5299-5003 

CAT III 

Condition 

Residuals, Fractured Left 
Proximal Tibial Plateau 
Scars, Left Knee, Thigh and 
Gluteal Area 
Muscle Herniation Left Thigh 

↓No Additional MEB/PEB Entries↓ 

Combined:  10% 

0% X 5 / Not Service-Connected x 1 
Combined:  40%** 

Code 

5275-5262 

7801 
5314 

Rating 
10%* 

20% 
10% 

Exam 

20040107 

20040107 
20040107 
20040107 

RATING COMPARISON: 
 

Service IPEB – Dated 20031120 

VA (~2 Mos. Pre-Separation) – All Effective Date 20040306 

*VA decision 20050415 changed code to 5299-5262; then on 20081007 increased to 20% effective 20080527; combined 70% 
including  non-PEB  conditions.  **VA  decision  20091117  increased  combined  to  80%  effective  20090729  based  on  non-PEB 
conditions. 
 
 
ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application 
regarding  the  significant  impairment  and  worsening  severity  with  which  his  service-incurred 
condition continues to burden him.  It is a fact, however, 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.  This role and 
authority  is  granted  by  Congress  to  the  Department  of  Veterans  Affairs  (DVA).    The  DVA, 
operating  under  a  different  set  of  laws  (Title  38,  United  States  Code),  is  empowered  to 
compensate  service-connected  conditions  and  to  periodically  re-evaluate  said  conditions  for 
the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary 
over  time.    The  Board  utilizes  DVA  evidence  proximal  to  separation  in  arriving  at  its 
recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to 
post-separation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides 
in evaluating the fairness of DES fitness determinations and rating decisions for disability at the 
time of separation.  Post-separation evidence therefore is probative only to the extent that it 
reasonably  reflects  the  disability  and  fitness  implications  at  the  time  of  separation.    It  is 
furthermore noted for the record that the Board has neither the jurisdiction nor authority to 
scrutinize or render opinions in reference to the CI's statement in the application regarding the 
disability rating by the VA of 80% instead of 100%.  The CI should contact a DVA counselor to 
learn how to bring this concern to the VA’s attention. 
 
Tibial Plateau Fracture Condition.  The CI sustained a fracture of the tibial plateau of the left 
knee in a motorcycle accident on 17 August 2002 which required surgical fixation.  A concurrent 
lateral thigh de-gloving injury required split thickness skin grafting.  Persistent knee pain led to 
evaluation  with  magnetic  resonance  imaging  (MRI)  and  arthroscopy,  which  only  identified 
limited  chondromalacia  of  the  patellofemoral  joint.    Removal  of  the  surgical  hardware  on  
1  May  2003  resulted  in  substantial  improvement  in  medial  knee pain; however,  lateral  knee 
pain  persisted  despite  ongoing  physical  therapy.    There  were  three  goniometric  range-of-
motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which 
the Board weighed in arriving at its rating recommendation; as summarized in the chart below. 
 

Left Knee ROM 

Ortho ~6.5 Mos. Pre-Sep 

MEB ~6 Mos. Pre-Sep 

VA C&P ~2 Mos. Pre-Sep 

Flexion (140⁰ Normal) 
Extension (0⁰ Normal) 

Comment 

§4.71a Rating 

135⁰ 
0⁰ 

10% 

Non-tender 

125⁰ 
0⁰ 

10% 

+Tenderness 

130⁰ 
0⁰ 

10% 

+Pain with use 

   
At the narrative summary (NARSUM) exam 6 months prior to separation, the CI reported left 
knee pain severity of two on a 0-10 scale that worsened with activity.  He denied swelling or 
symptoms of knee instability.  The CI believed that discomfort in the area of the thigh skin graft 

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caused his duty performance problems.  Examination revealed no gait abnormality and no signs 
of  knee  ligament  instability.    Lower  extremity  muscle  strength  was  normal.    Hip  ROM  was 
normal.  The large split-thickness skin graft of the anterolateral thigh exhibited no tenderness, 
swelling  or  inflammation.    A  physical  therapy  (PT)  evaluation  on  14  October  2003  5  months 
prior  to  separation  reported  some  stiffness,  but  no  pain.    Gait  was  normal.    A  follow-up  PT 
evaluation on 24 November and 20 December 2003 also reported a normal gait.  He was no 
longer wearing a knee brace.  At the VA Compensation and Pension (C&P) exam 2 months prior 
to separation, the CI reported that it was difficult to run, jump, exercise, push a lawn mower or 
climb  stairs because  of left  knee pain  and  giving  out.    He  reported  swelling  of  the  knee  and 
limping after prolonged walking, and used a knee brace.  He also complained of pain in the area 
of the posterolateral upper thigh when sitting, which caused him to shift his weight to his right 
side.  The area was sometimes sensitive to touch.  Examination revealed a slight limp, “possibly 
due to  his  left  knee,”  but did  not note  if  a brace  was  present.    Knee  pain  caused decreased 
ability to toe and heel walk.  Lower extremity length measured 98 centimeters on the left and 
99 centimeters on the right.  A 31 centimeter by 10 centimeter (approximately 12 inch by 4 
inch) scar was present at the graft site on the left upper posterolateral thigh.  It exhibited some 
decreased  sensation,  and  there  was  some underlying  tissue  loss  and  focal  muscle  herniation 
present.  Another 3 centimeter by 1 centimeter scar in the gluteal area was indented.  ROM of 
the hips was equal.  The left knee showed no redness or swelling.  The patellar tendon area was 
reportedly painful, but evident tenderness or painful motion was not explicitly described.  X-
rays of the knee showed post-surgical changes.  A C&P exam 6 months after separation noted 
that the CI was ambulating without assistive devices.  Gait and lower extremity muscle strength 
was normal.  There was no tenderness of the thigh graft site. 
 
The  Board  directs  attention  to  its  rating  recommendation  based  on  the  above  evidence.  
Although noncompensable limitation of motion was present, the ratings by the PEB and the VA 
were  supported  by  evidence  of  pain  with  use  (§4.40)  or  painful  motion  (§4.59).    The  Board 
considered  a  higher  rating  under  the  5262  code  (tibia  and  fibula,  impairment  of).    Board 
members agreed however that the evidence elaborated above does not reflect a “moderate” 
level of knee disability, and therefore a 20% rating is not justified under that code.  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 tibial plateau fracture condition.  The Board further debated the left 
thigh full thickness skin and subcutaneous defect adjudicated as Category III by the PEB.  The 
Board’s first charge with respect to this condition is an assessment of the appropriateness of 
the PEB’s fitness adjudication.  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.    Although  this 
condition  was  identified  by  the  CI  as  an  impediment  to  duty  performance,  there  was  no 
physical examination evidence supporting this.  The thigh was non-tender and exhibited normal 
muscle strength.  Except for the first C&P examiner who noted a slight limp that may have been 
due to knee pain, other examiners before and after separation noted a normal gait.  There was 
no indication from the record that this condition 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  PEB 
fitness determination for the full thickness skin and subcutaneous defect 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  tibial  plateau  fracture  condition  and  IAW  VASRD 

   3                                                           PD1200527 
 

§4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter 
of the contended full thickness skin and subcutaneous defect condition, the Board unanimously 
recommends  no  change  from  the  PEB  determination  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: 
 

VASRD CODE  RATING 
5299-5003 
COMBINED 

10% 
10% 

            
           President 
           Physical Disability Board of Review 

Tibial Plateau Fracture 

UNFITTING CONDITION 

 
 
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 
 
 
 
 
 
 
 
 

 

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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 31 Dec 12 
 
      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 USMC  
 
-  former USN 
 
 
-  former USMC 
 
-  former USMC  
 
 
 
 
 
 
 
 
 
 
 

  
Assistant General Counsel 
 (Manpower & Reserve Affairs) 

 
      
 

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