RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00383
BRANCH OF SERVICE:  NAVY	Separation Date:  20080626

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Builder, medically separated for “chronic right knee pain,” with a disability rating of 20%.  

CI CONTENTION:  He was not evaluated for other medical problems.  His complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20070507	VARD – 20110417; 20120417; 20130130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain	5257	20%	Instability Right Knee	5257	10%	20110608	
S/P Lateral Collateral Ligament Revisional Procedure	Cat II	S/P Right Knee Reconstruction	5260	10%	20110608	
S/P Posterolateral Corner Repair x2	Cat II					
		Neuritis of the Right Foot	8622	10%	20110608+	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80% to 100%	

ANALYSIS SUMMARY: 

Right Knee Condition.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent his first right knee surgery (posteriorolateral corner repair including lateral collateral ligament repair) in June 2007 for a lateral collateral ligament tear.  The CI subsequently suffered a fall in August 2007 resulting in a failure of his repair.  The CI underwent a second surgery in October 2007 (approximately 9 months prior to separation) for repair (“revisional procedure”) of the lateral collateral ligament.  
The MEB NARSUM dated 24 March 2007, approximately 3 months prior to separation, noted an examiner’s summary of chronic right knee pain, the need for a knee brace, occasional use of crutches due to increased pain and very limited weight bearing.  The CI was undergoing physical therapy for the lateral collateral ligament and complained of transient numbness and tingling to the toes of his right foot.  

The NARSUM physical examination (accomplished 27 February 2008, approximately 4 months prior to separation), documented an antalgic gait with well healed scars.  Knee flexion was to 118 degrees (normal 140) and extension to 0 degrees (normal).  There was atrophy of the quadriceps, hamstring, and gastrocnemius muscles compared to the opposite leg.  There was minimal joint line tenderness and testing for laxity and instability were negative; with the examiner stating “these were very restricted due to the recent repair and ongoing therapy….Distal neurovascular systems were grossly intact.”  

At the time of the orthopedic clinic appointment on 14 April 2008, approximately 2 months prior to separation the CI reported he was better overall with persisting right knee pain and continuing use of a brace.  Physical examination documented well healed incisions with knee motion 0-130 degrees (normal 0-140).  The knee was stable to valgus stress and manipulation (test for lateral collateral ligament).  There was motor weakness (3+/5) in the pernoneals and there was decreased sensation testing (1/2) distally.  The examiner indicated there was worsening peroneal neuritis, changed the CI’s neuroactive medication (Neurontin to Lyrica) and was awaiting electrodiagnostic testing (EMGs).  

The VA Compensation and Pension (C&P) examination dated 8 June 2011, approximately 35 months after separation noted complaints of right knee weakness, swelling, giving way, locking, fatigability, tenderness, pain and dislocation.  He had constant 8/10 right foot tingling and numbness, abnormal sensation, pain, muscle spasms, and weakness and was taking narcotic pain medication and Gabapentin.  The CI also reported spontaneous flare-ups with symptoms of difficulty walking, standing, kneeling, squatting and crossing legs.  

The physical examination documented that the CI wore a knee brace and used a cane with a normal gait.  There was painful motion to flexion of 120 degrees and extension of 0 degrees.  There was joint line tenderness, and the medial and lateral collateral tests were “abnormal with slight instability.”  Anterior/posterior testing for laxity was normal and there was no subluxation.  Right leg neurologic examination documented neuritis of the superficial Peroneal nerve with motor dysfunction of mild foot drop with motor weakness (4/5) on dorsiflexion of the ankle on the right foot. There were findings of decreased sensation to the right leg and foot.  Reflexes were normal.  The right knee scar was superficial and not painful on examination.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 20% coded 5257, (knee, other impairment of: recurrent subluxation or lateral instability - “moderate”).  The VA rated the right knee condition at 10% coded 5257 (citing “slight” recurrent instability); plus 10% coded 5260 (leg, limitation of flexion; citing painful and limited motion); plus 10% coded 8622 (neuritis of superficial peroneal nerve; citing moderate incomplete paralysis); plus 0% coded 7805 (scar; citing a non-tender stable scar).  

The Board adjudged that the VA examinations carried lowered probative value given their remoteness from the date of separation and deliberated rating(s) based on the NARSUM and orthopedic examinations.  

The CI had right knee instability; pain, limited motion; and motor and sensory deficit (weakness/neuritis from surgical injury) which the Board adjudged were unfitting and ratable.  Multiple ratings and coding options were deliberated with due attention to VASRD §4.14 (avoidance of pyramiding) as well as §4.59, §4.40, §4.45, and §4.123.  

The Board considered the right knee instability was separately ratable.  The MEB examiner documented that the CI used a knee brace and also occasionally used crutches due to increased pain and very limited weight bearing.  The Board agreed that there was slight instability of the knee (10%) versus the PEB adjudicated 20% (moderate) rating which likely included other disability features of the CI’s knee disability (which the Board separated as below).  The Board next considered the right knee pain and limited motion was separately ratable (dual coding of the knee) and was most appropriately coded and rated analogously to 5003 (arthritis, degenerative).  Any contribution to limited motion by the surgical scar(s) was considered under this rating.  Based on the well-documented findings of chronic right knee pain, abnormal radiographs, and limited motion at the MEB and Orthopedics exams, a 10% rating was supported (based on §4.59, §4.40 and §4.45).  The Board next adjudged that there was a preponderance of evidence to warrant finding the post-surgical right lower leg weakness and muscle atrophy with sensory deficit as separately unfitting and ratable.  Although weakness and atrophy in some cases may be due to disuse following knee surgery, the record strongly supported post-surgical deficits in the musculocutaneous (superficial peroneal) nerve [codes 8522-paralysis, 8622-neuritis] in this case.  The Board adjudged that the CI’s disability picture at separation was at the moderate incomplete paralysis level and supported a 10% rating coded 8622 considered rating under code 8522 (neuritis).  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends disability ratings of 10% 5099-5003, and 10% 5257, and 10% 8622 for the chronic right knee pain with S/P Lateral Collateral Ligament Revisional Procedure and S/P Posterolateral Corner Repair x2 with Peroneal Neuritis conditions.  

BOARD FINDINGS:  In the matter of the “chronic right knee pain” condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the s/p lateral collateral ligament revisional procedure condition, the Board unanimously recommends a disability rating of 10%, coded 5257 IAW VASRD §4.71a.  In the matter of the s/p posterolateral corner repair x2 with peroneal neuritis condition, the Board unanimously recommends a disability rating of 10%, coded 8622 IAW VASRD §4.124a.  There were no other conditions within the Board’s scope of review for consideration.  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	
Chronic Right Knee Pain	5099-5003	10%	
S/P Lateral Collateral Ligament Revisional Procedure	5257	10%	
S/P Posterolateral Corner Repair x2 with Peroneal Neuritis	8622	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131210, 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 15 Apr 16 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 23 May 16 ICO XXXXXXXXXXXXXXXXXX  
	(d) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXX 
	(e) PDBR ltr dtd 23 May 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 23 May 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 09 May 16 ICO XXXXXXXXXXXXXXXXXX 
	(g) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXXXXX 
	(i) PDBR ltr dtd 14 Apr 16 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.

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

     a. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final rating of 30 percent (increased from 10 percent).

     b. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final rating of 30 percent (increased from 10 percent).

     e. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 10 percent) effect date of discharge. 

     f. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effect date of discharge.

     g. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     h. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge. 
     
     i. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 70 percent disability rating (increased from 10 percent) effect date of discharge.
 
     j. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effect 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 complete.

		XXXXXXXXXXXXXXXXXX
		Assistant General Counsel
		(Manpower & Reserve Affairs)