RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00812
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150130
SEPARATION DATE:  20090530

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Motor Transport Operator) 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 and referred for a Medical Evaluation Board (MEB).  The right knee condition, characterized as “other joint derangement, not elsewhere classified, lower leg” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated “anterior right knee pain secondary to posterior cruciate ligament (PCL) tear” as unfitting, rated 20% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 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/Naval 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 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 IPEB – Dated 20090415	VA - (5.5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anterior Right Knee Pain Secondary to Posterior Cruciate Ligament Tear	5262	20%	Right PCL Tear With Residual Pain	5260	10%	20091113	
Other x 0  (Not in Scope)	Other x 15 	
Rating:  20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20100112 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Knee Condition.  Review of the service treatment record showed that in May 2008 the CI injured his right knee while playing softball.  He continued to experience knee pain and was treated with physical therapy (PT).  Magnetic resonance imaging showed a possibly torn PCL and possible tear of medial meniscal cartilage.  Operative intervention was considered to be unwarranted.  At a PT visit on 11 July 2008 (10 months prior to separation) the CI reported pain with passive and active range-of-motion (ROM).  Pain was exacerbated by prolonged sitting, and knee bending or twisting.  The knee also reportedly felt “loose.”  At an orthopedic evaluation on 24 November 2008 (6 months prior to separation), the CI reported ongoing symptoms of instability despite PT.  He was noted to be exercising regularly.  The examiner’s assessment was posterior cruciate ligament sprain.

The narrative summary prepared on 20 January 2009 (4 months prior to separation) recorded complaints of right knee pain, occasional swelling and catching, and instability.  Physical examination showed tenderness and mild right knee swelling.  A sign of mild PCL laxity was present, but all other ligaments were intact.  The assessment was “a mild Grade 1 tear, possibly Grade 2 at the very worst.”  The examiner opined that the CI would benefit from use of a PCL stabilization brace.  At the MEB exam on 21 January 2009, the CI indicated that he was using a knee brace for his PCL injury.  At an evaluation on 5 March 2009 the CI was observed to walk with a right-sided limp due to knee pain.

At the VA Compensation and Pension exam performed 5 months after separation, the CI complained of right knee pain, stiffness, giving way and instability.  He took Tylenol as needed for pain.  The frequency of giving way and instability was not specified, but locking episodes were reported to occur 1-3 times per month.  He used a right knee brace frequently.  Examination showed a normal gait but no knee instability.  There was no additional limitation with repetitive motion.  Knee X-rays were normal.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Knee ROM
(Degrees)	PT ~10 Mos. Pre-Sep	Ortho ~6 Mos. Pre-Sep	VA C&P ~ 5 Mos. Post-Sep	
Flexion (140 Normal)	124	“Full range of motion”	120	
Extension (0 Normal)	-2		0	
Comment	+Painful motion	+Painful walking	+Painful motion	
§4.71a Rating	10%*	10%*	10%*	
            *IAW VASRD §4.59 (painful motion)

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 5262 code (tibia and fibula, impairment of), while the VA rated the condition at 10% using the 5260 code (leg, limitation of flexion of).  Although support for the PEB’s use of the 5262 coding approach was lacking since there was no tibial or fibular injury, Board members agreed that the “marked knee disability” stipulation was absent.  Therefore, the next higher 30% rating was not justified via this pathway, but the Board considered other rating options.  Although compensable limitation of motion was not present on any exam, a 10% rating was warranted IAW VASRD §4.59 (painful motion).  In considering other pathways to a higher rating, it was noted that complaints of knee instability requiring the use of a brace were consistent with pre-separation radiographic and examination findings suggesting PCL insufficiency.  
The Board thus concluded that instability (separate from pain) was a component of the unfitting knee condition; and that dual coding for painful motion and instability was therefore justified.  Under the 5257 code (knee other impairment of, recurrent subluxation or lateral instability) a 10% rating is warranted for “slight” and a 20% rating for “moderate” instability.  Board members concluded that the PCL instability severity depicted by physical examination findings was most accurately described by the “slight” stipulation.  Therefore, a 10% rating was justified via this pathway, in addition to a 10% rating for painful motion under an analogous 5299-5260 code.  Given the rating recommendation as just elaborated, the Board concluded that there is no benefit to the CI in a dual rating approach.  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 anterior 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 anterior 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 20140518, 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 29 May 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 USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC