RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01937
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140617
SEPARATION DATE:  20060105

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve AD3/E-4 (Aviation Machinist’s Mate) medically separated for a right knee condition.  The bilateral knees could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  “Old disruption of anterior cruciate ligament” (listed twice representing bilateral) was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “status post right anterior cruciate ligament reconstruction, with right knee re-injury and possible loose bodies” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining condition, status post left anterior cruciate ligament (ACL) reconstruction was determined to be a Category III condition and not separately unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION: “All disabling medical conditions were not considered and/or properly awarded.”  

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.  The left knee condition that was determined to be a Category III condition is also addressed.  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 IPEB – Dated 20050922	VA - (11 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post Right Anterior Cruciate Ligament Reconstruction, with Right Knee Re-Injury and possible Loose Bodies	5299-5003	10%	Instability, Right Knee, Status Post ACL (anterior cruciate ligament) Reconstruction	5257	10%	20070205	
			Posttraumatic Osteoarthritis, Right Knee with Limited Motion	5010-5260	10%	20070205	
Status Post Left Anterior Cruciate Ligament Reconstruction	CAT III	Instability, Left Knee, Status Post ACL (anterior cruciate ligament) Reconstruction	5257	10%	20070205	
		Posttraumatic Osteoarthritis, Left Knee with Limited Motion	5010-5260	10%	20070205	
Other x 0 (Not in Scope) 	Other x 8		
Rating:  10%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20070809 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Status Post Right Anterior Cruciate Ligament Reconstruction, with Right Knee Re-Injury and Possible Loose Bodies.  The CI presented with right knee pain after a sporting injury in 2001.  He underwent an ACL reconstruction in May 2002.  The CI sustained a second injury to the right knee October 2004.  A magnetic resonance imaging (MRI) study revealed a possible loose fragment.  An orthopedic consultation recommended a right knee arthroscopy, but the CI was relocating and deferred the surgery.  The narrative summary (NARSUM) notes that the CI continued to report right knee pain, swelling and hyperextension.  The examiner noted that the CI was recovering from a recent re-injury of the right knee on 30 June 2005.  The physical examination was significant for right knee hyperextension of 5 degrees, positive effusion, some medial joint line tenderness and a one millimeter anterior displacement (Lachman Test of the anterior cruciate ligament) with good end point.

At the VA Compensation and Pension (C&P) exam performed 11 months after separation, the CI reported right knee giving way with popping behind the patella.  He reported 5 flare ups in the past 12 months, each lasting approximately 2 weeks.  The physical examination was significant for flexion limitation to 120 degrees with pain, pain to palpation over the mediolateral joint, moderate patellofemoral crepitus, positive patella grind pain with compression of the patella during motion and a 1+ anterior cruciate laxity.  No effusion or hyperextension was present.  Radiographic evaluation revealed changes consistent with an ACL reconstruction and early post-traumatic (surgical) osteoarthritis.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the status post right ACL reconstruction, with right knee re-injury and possible loose bodies as unfitting with a disability rating of 10% analogous to degenerative arthritis, coded 5299-5003.  The VA applied dual coding for right knee instability and post-traumatic osteoarthritis (painful motion) with non-compensable limitation of motion.  The Board considered the reconstruction of the right ACL, recurrent reports of right knee instability, recurrent right knee injuries and the objective finding of anterior laxity as evidence of right knee instability.  The Board noted that the 1+ anterior laxity is the first level on a scale of one to three for evaluating ACL laxity and thus determined the criteria for slight knee instability was met for a disability rating of 10%.  The Board then considered if there was evidence of limitation of range-of-motion for dual coding of the right knee.  The Board determined that both the NARSUM and VA examinations evidenced limitation of flexion and joint line tenderness.  The Board determined that the evidence reasonably supported pain limited motion for a disability rating of 10%; analogous to limitation of motion, coded 5299-5260.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right knee instability and 10% for the right knee limitation of motion for a combined 20% disability rating.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that left knee status post ACL reconstruction was not unfitting.  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.  The available treatment records document that the CI presented with left knee buckling and increasing pain on 10 September 2002.  An MRI revealed a high grade ACL tear and a partial medial collateral ligament tear.  The CI underwent a left ACL reconstruction in June 2003.  Despite surgical and conservative management the CI continued to report left knee pain.  At the time of the NARSUM examination, the CI did not report left knee pain.  The physical evaluation documented a 1 mm Lachman with excellent end point, no joint effusion and no joint tenderness to palpation. The PEB adjudicated the left knee as not unfitting and not contributing to the right knee condition.

The VA C&P examination documented reports of knee giving away with popping behind the patella.  The physical examination was significant for flexion limitation to 120 degrees with pain, pain to palpation over the mediolateral joint, mild patellofemoral crepitus, positive patella grind and a 1+ anterior cruciate laxity.  No effusion or hyperextension was present.  Radiographic evaluation revealed changes consistent with an ACL reconstruction and moderate post-traumatic osteoarthritis.

The Board makes note that the treatment records consistently documented pain in both knees, right greater than left.  The Board noted radiographic pathology and surgical intervention.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the left knee favors its recommendation as an additionally unfitting condition.  Board consensus was that the left knee condition at time of separation did not evidence compensable limitation of motion; however, there was satisfactory evidence of painful motion, VASRD § 4.59, and pain with use; VASRD §4.40.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board member agreed that the evidence supported a rating of 10% for the left knee.

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 status post right ACL reconstruction, with right knee re-injury and possible loose bodies condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5260, IAW VASRD §4.59 and 10%, coded 5257 for right knee instability, IAW VASRD 4.71a, for a combined disability rating of 20%.  In the matter of the contended left knee, status post ACL reconstruction condition, the Board majority agrees that it was unfitting and recommends a disability rating of 10%, coded 5299-5260 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Right Knee Pain	5299-5260	10%	
Right Knee Instability s/p ACL reconstruction	5257	10%	
Left Knee Arthritis	5299-5260	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131024, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
		   DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
       (b) PDBR ltr dtd 29 Mar 15 ICO XXXXXXXXXXXXXX   
	 (c) PDBR ltr dtd 25 Mar 15 ICO XXXXXXXXXXXXXX
	 (d) PDBR ltr dtd 23 Mar 15 ICO XXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 29 Mar 15 ICO XXXXXXXXXXXXXX
	 (f) PDBR ltr dtd 29 Mar 15 ICO XXXXXXXXXXXXXX

1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (f).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a disability rating of 30% effective date of discharge.

     b. XXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a disability rating of 30% effective date of discharge.

     c. XXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a disability rating of 30% effective date of discharge.

     d. XXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a disability rating of 30% effective date of discharge.

     e. XXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a disability rating of 30% effective date of discharge.
 
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.