RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX	BRANCH OF SERVICE:  Marine corpS 
CASE NUMBER:  PD-2011-00006              	SEPARATION DATE:  20080131
BOARD DATE:  20120202

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve Cpl/E-4 (0331, Machine Gunner) medically separated for status post (s/p) right knee anterior cruciate ligament (ACL) reconstruction.  He was treated, but did not respond adequately to fully perform his military duties or meet physical fitness standards.  He underwent a Medical Evaluation Board (MEB).  Four knee conditions (right knee pain, s/p ACL reconstruction right knee, s/p medial meniscus repair right knee, and s/p left knee arthroscopy) were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E.  The PEB found the s/p ACL reconstruction right knee unfitting, and rated it 10% IAW the Veterans’ Administration Schedule for Rating Disabilities (VASRD). Persistent right knee pain and s/p right knee medial meniscus (MM) repair were both adjudicated as Category II (related to the unfitting right knee condition).  The left knee condition (s/p left knee arthroscopy) was adjudicated as Category III (not separately unfitting and not contributing to the unfitting right knee condition).  The CI made no appeals, and was thus medically separated with 10% disability IAW applicable Navy and DoD regulations.

CI CONTENTION:  The CI states, “Pain on both my knees have increased while performing physical activities like walking or standing for short periods of times.  My limitations are greater now because of the pain.  Right knee gives out and are unable to stand on it unless I stretch it prior to moving.  More grinding on both knees when squatting down or walking up/down on stairs which also creates pain.” 

RATING COMPARISON:
Navy PEB – dated 20071202	VA (4 mo. Pre Separation) – All Effective 20080201	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P ACL Repair, Right Knee 	5299-5003	10%	Osteoarthritis (OA), Right Knee	5010-5260	10%	20070918	
S/P MM Repair, Right Knee	Category II	No VA Entry for Rt. MM Repair				
Persistent Pain, Right Knee 	Category II	Hamstring Defect, Right Leg	5313	10%	20070918	
S/P Arthroscopy, Left Knee 	Category III	Meniscal Tear, Left Knee	5299-5260	10%	20070918	
Combined:  10%	Combined:  30%	

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the significant impairment with which his condition continues to burden him.  The Board is subject to the same laws for disability entitlements as those under which the military Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate service 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).  The Board’s authority resides in evaluating the fairness of DES fitness decisions and rating determinations at the time of separation from service.  

Right Knee Condition.  In February 2005, this Marine sustained a twisting injury of his right knee while he was deployed to Iraq.  When he returned to the US, he was diagnosed with a torn ACL.  He underwent ACL repair in July 2005.  In December 2005, he was still having problems with his right knee, and he was placed on limited duty (LIMDU).  In March 2007 he had a right knee arthroscopy, with medial meniscus (MM) repair.  During the procedure, it was noted that the ACL graft was intact.  His right knee pain persisted, and an MEB was initiated.  At his June 2007 MEB exam, seven months prior to separation, the CI reported right knee pain, and inability to run or perform field activities.  His gait was normal.  Examination of the right knee revealed trace effusion, but the joint was stable to anterior, posterior, varus, and valgus stress.  The right Lachman’s was equivocal, with 1-2 mm of motion but a firm and stable endpoint.  There was vague discomfort with palpation of the medial joint line, but no lateral joint line tenderness. 

Three months later, at his September 2007 VA Compensation and Pension (C&P) exam, the right knee showed no effusion, redness, heat, abnormal movement, subluxation, or locking pain.  There was some mild soft tissue swelling and some crepitus was noted, but no instability.  McMurray’s and Drawer tests were normal bilaterally.  The patellofemoral compression test was positive on the right.  Motor strength of the right lower extremity was 5 out of 5.  Two goniometric range of motion (ROM) evaluations were evident, and are summarized below.

Goniometric ROM 
Right Knee	MEB – 7 mo. Pre-Sep
(20070621)	C&P – 4 mo. Pre-Sep
(20070918)	
Flexion (140⁰ is normal)	110⁰	130⁰	
Extension (0⁰ is normal)	0⁰	0⁰	
Comment	No mention of pain	Pain at 130⁰ flexion	
§4.71a Rating	0%	10%*	
*10% based on §4.40 (Functional loss), §4.45 (The joints), and §4.59 (Painful motion)

The Board carefully reviewed all evidentiary information available.  The PEB and the VA chose different coding options for the right knee condition, but both had assigned a rating of 10%.  The right knee limitation of motion was essentially non-compensable based on VASRD §4.71a knee and leg ROM codes (5260 and 5261).  However, IAW VASRD §4.40, §4.45, and §4.59; a 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint.  The CI clearly had pain with motion, as reported in his history and during the C&P exam, and therefore qualifies for a 10% rating.  The Board then directed its attention to the issue of ligamentous instability.  Review of the treatment record shows that at both the June 2007 MEB exam and the September 2007 C&P exam, there was no clear-cut, objective evidence of significant knee instability.  The only laxity noted on exam was an equivocal Lachman’s sign with 1-2 mm of motion but a firm and stable endpoint.  The Board determined that this was not sufficient evidence of joint instability and was not unfitting, and therefore does not justify a separate rating.  After due deliberation, and mindful of VASRD §4.3 (Reasonable doubt), the Board unanimously recommends a rating of 10% for the right knee.

Left Knee Condition.  In August 2006, the CI underwent left knee arthroscopy, and partial lateral meniscectomy.  The left knee surgery was considered a success.  Postoperatively, the CI was seen a few times for some left knee pain while running, but no specific diagnosis was made.  At his June 2007 MEB exam, he did not complain of left knee pain.  Examination revealed no effusion, joint line tenderness or instability.  Furthermore, the left knee condition was not mentioned in the commander’s non-medical assessment (NMA).  At the September 2007 C&P exam, left knee ROM was 135 degrees flexion and 0 degrees extension, without pain.  There was no instability, and left knee x-rays were normal.  In October 2007, exam of the left knee was reported as normal, with full ROM.  As mentioned above, the Navy PEB adjudicated the left knee as Category III.  The Board could not find sufficient evidence that the left knee condition interfered with satisfactory performance of required military duties.  All evidence considered, there was not reasonable doubt in the CI’s favor for reversal of the PEB’s fitness determination for the left knee condition.  The Board unanimously agrees that the left knee was not unfitting at the time of separation from service.

Remaining Conditions.  Hamstring muscle defect, acne vulgaris, photorefractive keratectomy (PRK), and several other conditions were also noted in the DES file.  None of these conditions were clinically significant during the MEB/PEB period, none were the basis for LIMDU, and none were implicated in the NMA.  These conditions were all reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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 right knee condition and IAW VASRD §4.40, §4.45, §4.59, and §4.71a; the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left knee condition, hamstring muscle defect, acne vulgaris, PRK, or any other conditions eligible for consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

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	
S/P Right Knee ACL Reconstruction, with Persistent Pain	5299-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110104, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record