RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-00064
BRANCH OF SERVICE:  Marine corps	BOARD DATE:  20150106
SEPARATION DATE:  20061031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Cpl/E-4 (0811/Artillery Cannoneer) medically separated for right knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was placed on limited duty and eventually referred for a Medical Evaluation Board (MEB).  The right knee condition, characterized by the MEB as two separate diagnoses: “pain in joint, lower leg” and “bucket handle tear of the lateral meniscus,” was forwarded to the Physical Evaluation Board (PEB).  No other conditions were forwarded by the MEB.  The PEB adjudicated “right medial sided knee pain post surgical” as a Category I condition: unfitting, rated 10%.  The PEB found “right knee bucket-handle medial meniscal tear, status post medial meniscectomy” as a Category II condition: a related diagnosis to the unfitting Category I condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Gradual debilitating injury.  Pain is worse every year.  Arthritis sets faster swelling, weakness.  One day I will not be able to walk.”  

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 Board will consider the Category II condition as stated above, in its review of the unfitting right knee condition.  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 20060418	VA - (5 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Medial Sided Knee Pain	5099-5003	10%	S/P Right Knee Multiple Surgeries	5260	10%	20060606	
Right Knee … Meniscal Tear	Cat II	S/P Right Tibia Stress Fracture	5299-5262	10%	20060606	
		Scars, S/P Right Knee Multiple Surgeries	7802	0%	20060606	
Other x 0 (Not In Scope)	Combined:  20%	
Combined:  10%		
Derived from VA Rating Decision (VARD) dated 20070412 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate 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, operating under a different set of laws.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Right Knee Condition.  The service treatment record detailed that the CI was seen for bilateral knee pain (without history of injury) in November 2003.  In January 2004 he was seen for a 5 week history of left upper shin pain.  X-ray showed a stress fracture of the left [confirmed left, not right] proximal tibia.  Two weeks later, the CI reported that the pain had resolved and that he wanted to return to training.  In April 2004 he was seen for “right knee out of joint,” although the history for this injury dated back several months.  In August 2004 he had arthroscopic reconstruction of the anterior cruciate ligament (ACL) and cartilage repair (medial meniscus) of the right knee.  In April 2005 (15 months prior to separation), he reinjured the right knee and had partial resection of the medial meniscus.  He underwent extensive physical therapy but had persistent pain and a subtle feeling of instability, although he did not have any frank giveways.

At the NARSUM examination, 8 months prior to separation, the CI had trace swelling of the right knee, tenderness along the medial joint line, and range-of-motion (ROM) from 0 to 120 degrees (normal 0 to 140 degrees).  Stability testing indicated “Lachman 1+ translation, 0-5 mm with a solid end point” [mild instability].  At an orthopedic visit 7 months prior to separation, the right knee showed no swelling, full ROM, no laxity (negative McMurray and Lachman signs), and mild tenderness to palpation of the joint line.  The examiner stated:  “Currently, I think his symptoms of modest instability and medial-sided knee pain are most consistent with the absence of his medial meniscus.”

At the VA Compensation and Pension exam performed 5 months prior to separation, the CI reported intermittent pain over the right proximal tibia (shin bone) for almost 3 years which was aggravated with standing, walking, and running.  The pain lasted for a few minutes, was relieved by rest, and did not require pain medication.  On examination, there were two surgical scars of the right knee which were “very disfiguring” and “slightly depressed” but without tenderness, tissue loss, ulceration, or keloid (robust scar) formation.  There was no crepitus (grating) of either knee and no evidence of laxity (negative Drawer and McMurray tests).  The right knee had slight tenderness and limited ROM (0 to 120 degrees, vs. normal 0 to 140 degrees).  An X-ray showed a “lucent oblique track in the proximal tibia, as a result of ligamentous repair.”  The diagnoses were status-post right tibia stress fracture with ligamentous repair residual recurrent pain and status-post right knee multiple surgeries with residuals of scars and strain.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right medical-sided knee pain with code 5099-5003 at 10%, stating that the right knee medial meniscus tear, status-post menisectomy, was a related condition.  The VA rated the multiple right knee surgeries with code 5260 (limitation of flexion of leg) at 10%, and the right tibia stress fracture with analogous code 5262 (impairment of tibia and fibula) at 10% (with slight knee or ankle disability).  The VARD attributed slight knee disability with recurrent pain with prolonged walking and inability to run to the recurrent to the stress fracture (analogous code 5262), and decreased ROM and tenderness to the knee multiple surgeries (code 5260).

The Board notes that the CI’s stress fracture was of the left tibia (source X-ray and treatment notes) rather than of the right tibia.  The radiographic right tibia findings from the VA exam were noted, but not indicative of a stress fracture.  Rating of the right knee to include all sources of knee disability (ACL, meniscus, and scars) was discussed by the Board.  Limitation of motion did not attain a minimum rating under the diagnostic codes for limitation of flexion (5260) or extension (5261).  There was not significant objective evidence of instability of the knee to warrant a separate rating under code 5257 (recurrent subluxation or lateral instability), or for dual rating of the knee.  The Board considered that a 10% rating under disability code 5259 (Cartilage, semilunar - meniscus) would be ideal coding of the knee and included all of the CI’s symptoms.  There was not sufficient evidence of frequent episodes of “locking” and effusion into the joint that would warrant a higher meniscal rating (under code 5258).  There was insufficient evidence of moderate knee disability for higher coding analogously to 5262 (Tibia and fibula impairment).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board did not find a pathway to a higher rating, and concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right knee 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 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 20131226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				
XXXXXXXXXXXXXX
President
DoD 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 29 Apr 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:

- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)