RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01851
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141008
Separation Date:  20040531

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCPL/E-3 (0311/Rifleman) medically separated for a right knee condition.  The right knee condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The right knee condition, characterized as “right knee partial anterior cruciate ligament tear” and “persistent right knee pain,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  There was no MEB available; however, the Report of Medical Board did not identify any other conditions for PEB adjudication.  The Informal PEB adjudicated persistent right knee pain as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was diagnosed with PTSD 100% by VA + post meniscus tear repair R Knee w/degeneration no further surgery.”

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 right knee condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The requested PTSD was not identified by the PEB and is not within 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 20040323	VA - (22 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Right Knee Pain	5099-5003	10%	Right Knee Meniscus Tear	5259	0%	20060309	
Other x 0 (Not in Scope)	Other x 8 	20060309	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20051109 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board makes note that some of the CI’s contended conditions are derived from VA evaluations performed well after separation and that his current VA ratings are higher than those reflected in the above rating chart.  The Board’s operative instruction, DoDI 6040.44, specifies a 12-month interval for special consideration to VA findings.  This does not mean that the later VA evidence was disregarded, but the Board’s recommendations are directed to the severity and fitness implications of conditions at the time of separation.  In this circumstance, therefore, the evidence from the service record is assigned significantly more probative value as a basis for the Board’s recommendations.
Persistent Right Knee Pain Condition.  There were two 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.

Right Knee ROM (Degrees)	MEB 8 Mo. Pre-Sep	VA VARD 21 Mo. Post-Sep	
Flexion (140 Normal)	110	140	
Extension (0 Normal)	5	0	
Comment	Pos. pain limited motion, patellar compression & joint line tenderness; Mild effusion; No atrophy or instability	Pos. painful motion; No instability	
§4.71a Rating	10%	10% (VA 0%)	

The CI developed right knee pain after running approximately three miles in April 2002.  A right knee X-ray performed for tenderness to palpation (TTP) of the medial collateral ligament and superior aspect of the patella was normal.  He continued with right knee medial joint line pain.  A right knee magnetic resonance imaging showed a tear of the anterior horn of the lateral meniscus.  The CI was placed on a 30 day LIMDU for the right knee pain.  The CI was evaluated by orthopedics and underwent right knee arthroscopic surgery on 30 January 2003.  He was placed on a second LIMDU on 2 December 2002 for 8 months until 13 May 2003.  He was seen by physical therapy for a very slow recovery and pain eight to nine out of ten.  The orthopedist noted soreness at baseline with ROM only to 90 degrees limited by pain and diffuse anterior TTP on all testing.  The sports medicine specialist noted mild anterior swelling and mild TTP of the popliteal area and diagnosed hyperextension strain to the right knee.  Although the CI had chronic right knee pain, there were numerous notes which documented noncompliance with PT appointments and a lack of motivation towards his recovery.  The MEB narrative summary (NARSUM) exam approximately 8.5 months prior to separation documented that the CI had chronic right knee pain and pain limited motion.  The MEB NARSUM physical exam findings are summarized in the chart above.  The CI was given the following specific limitations of duty board processing:  no physical fitness testing, squatting, kneeling, jumping or crawling, however the CI could swim and bicycle as tolerated.  The CI did not appear at the initial scheduled VA Compensation and Pension (C&P) exam, however the rescheduled C&P exam, approximately 21 months after separation as cited in the VARD on 11 April 2006 documented no pain limited motion of the right knee.  The VA C&P physical exam findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the persistent right knee pain condition as 5099 analogous to 5003 arthritis, degenerative (hypertrophic or osteoarthritis), and rated at 10%.  The VA coded the right knee meniscus tear condition as 5259 (cartilage, semilunar, removal of, symptomatic) and rated at 0%.  All exams performed proximate to separation documented painful motion.  The MEB addendum examiner specifically documented pain limited flexion.  VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion” and VASRD §4.59 (painful motion) provides an alternate justification for a 10% rating.  The Board considered coding as 5259; however, the right knee condition could not be reasonably rated higher than 10% using any exam proximate to separation or any alternate rating schema.  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 persistent right knee pain 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 right knee pain 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 re-characterization of the CI's disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130816, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

							

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 26 Feb 15

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

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN