RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01201
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20091030

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Infantry, medically separated by the Informal Physical Evaluation Board (PEB) for “chronic right knee and leg pain,” with a disability rating of 10%.

CI CONTENTION:  The applicant makes no specific contention in his application.  The applicant’s 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 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 - 20090805	VARD - 20091119	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee and Leg Pain	5099-5003	10%	Right Knee Degenerative Arthritis Status Post Surgery with Scar
	5010-5261	

30%	

20090711	
Right Knee ACL Reconstruction	Cat II					
R Knee Medial Meniscus Repair	Cat II					
Posttraumatic Stress Disorder	CAT III	Posttraumatic Stress Disorder	9411	30%	20090711	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Right Knee and Leg Pain.  According to service treatment records (STR) and the MEB narrative summary (NARSUM), the CI’s right knee condition began in December 2007 when he fell and twisted his knee resulting in a torn medial meniscus.  Arthroscopically assisted right knee medial meniscus repair for a bucket-handle tear was performed in June 2008.  Arthroscopic examination noted the prior anterior cruciate ligament graft to be intact (CI underwent surgery in 2001 prior to entering service), the lateral meniscus intact, and intact joint cartilage surface.  In the initial post-operative period there was limited motion (loss of extension by 9 degrees and flexion to 82 degrees), however, by the end of October 2008, extension was full (0 degrees) and flexion was 120 degrees.  Despite treatment, the CI’s knee condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a Medical Evaluation Board (MEB).

At the time of the MEB narrative summary (NARSUM) appointment on 27 May 2009, 5 months before separation, the CI reported ongoing right knee and leg pain for approximately a year.  On examination his gait was guarded to avoid pain and there was diffuse tenderness to palpation over multiple aspects of the right knee including the medial and lateral joint lines.   He had some mild atrophy (decreased muscle mass) of the quadriceps muscle.  He had a healed incision over the medial aspect of the knee and anterior aspect of the knee.  There was no swelling, effusion or ligamentous instability and tests for meniscus problems were negative.   Strength and sensation were normal.  The range-of-motion was extension of 0 degrees (normal 0) and flexion 135 degrees (normal 140).  

At the VA Compensation and Pension (C&P) examination on 11 July 2009, 4 months before separation, the CI reported being diagnosed with right knee reconstruction and endorsed weakness, swelling, tenderness, knee giving way, pain, and dislocation; flare-ups occurring as often as three times per day and lasting for a day.  On physical examination, there was a steady but limping gait.  The examiner noted tenderness, guarding of movement and weakness with movement.  There was no swelling, deformity, malalignment, subluxation or crepitus.  The knee flexion was 90 degrees; the point at which onset of pain was reported.  Extension was 20 degrees; the point at which onset of pain was reported.  There was no painful motion noted within the 20 to 90 degree range.  Repetitive motion did not cause additional limitation.  The examiner noted that joint function was limited by pain, fatigue and weakness with pain having the major functional impact.  The examiner noted there was “locking pain” but that examination tests for meniscus pathology were negative.  The examiner noted there was instability of the anterior and posterior cruciate ligaments.  An X-ray of the right knee on the day of the VA C&P examination noted the prior ACL reconstruction with normal joint spaces (there were “minimal” tibial spine and dorsal patella spurs suggesting early degenerative arthritis but the joint spaces were normal). 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the analogous 5099-5003 code (degenerative arthritis), citing near normal range of motion, no instability and painful motion with functional loss.  The Board noted the additional diagnoses of “history of right knee anterior cruciate ligament reconstruction”, and “history of right knee medial meniscus repair” determined to be Category II conditions (conditions that contribute the primary unfitting condition but are not separately ratable) were intertwined diagnoses and the overall knee impairment from all listed diagnoses were subsumed under the ratings for the knee by both the PEB and the VA.  More than one rating based on the same impairment is prohibited (§4.14 avoidance of pyramiding).  The VA assigned a 30% rating under the 5261 code (limitation of knee extension) based on the VA C&P examination 4 months before separation, citing extension limited to 20 degrees.  The Board noted the markedly increased limitation of extension reported by the VA C&P examination.  The VA C&P examiner also noted instability of the right knee anterior and posterior cruciate ligaments that were not previously noted by the orthopedic surgeon.  There was no report of injury to explain the dramatic worsening of the right knee examination since the orthopedic MEB examination 6 weeks before.  The VA C&P ROM values were reported based on CI report of pain onset.  At no time prior to VA C&P examination was there evidence of limited extension except in the immediate post-operative period a year before as noted above.  Members agreed that the MEB examination performed by an orthopedic surgeon was more consistent with the STR and more reflective of the anticipated severity based on the clinical pathology.  The Board therefore relied more heavily on the MEB NARSUM examination for its rating recommendation. 

There was no limitation of motion which attained a minimum rating under the diagnostic codes for limitation of flexion or extension (5260, 5261) from the MEB NARSUM examination or service treatment records proximate to separation.  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) as adjudicated by the PEB.  The MEB and service examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), frequent locking with effusions or any indication of dislocated meniscus or loose body (5258) to support a rating under the respective codes.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There is therefore no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any applicable code, and no grounds for additional rating based on the presence of instability.  The arthroscopic surgery knee scars were well healed and did not interfere with duty, and therefore did not qualify for consideration of a separately unfitting rating.  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 chronic right knee and leg pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the posttraumatic stress disorder (PTSD) condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  According to the psychiatry MEB NARSUM, 9 July 2009, the CI deployed to Iraq from September 2007 to April 2008.  The CI sought care in November 2008 for symptoms of depression and anxiety including insomnia, as well as irritability, hypervigilance, hyperarousal, intrusive memories, and difficulty concentrating.  There was no suicidal or homicidal thoughts disturbances of thought processes or panic attacks.  He was initially diagnosed with depression and anxiety, later changed to PTSD, and treated with medications.  At the time of the MEB NARSUM examination, the CI noted his most bothersome symptoms were insomnia and hypervigilance while driving.  The mental status examination noted normal calm affect with full range of appropriate intensity, normal speech, intact memory, normal thought processes, and no thoughts of harm to self or others.  The examiner estimated the global assessment of function as 65 denoting some mild symptoms
but generally functioning pretty well.  Consistent with that assessment, the commander’s non-medical assessment dated 22 April 2009, stated:

“LCpl ___ is a hard working and reliable individual. LCpl ____ has never allowed his physical injuries to get in the way of being able to contribute to his section, company, or battalion. LCpl ____ has contributed greatly to the support of this commands mission. If he is found unfit for duty I enthusiastically recommend that he be retained in a permanent limited duty status.” 

The PSTD condition was reviewed and considered by the Board.  Despite bothersome symptoms, there was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the PTSD condition and no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the chronic right knee and leg pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  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 20140218, 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 16 Feb 16

      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:

- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USN   
- XXXXXXXXXXXXXXXXXXXX, former USN 

													XXXXXXXXXXXXXXXXXXXX	     				  	Assistant General Counsel
				(Manpower & Reserve Affairs)