RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02759
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150603
SEPARATION DATE:  20090130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Radio Operator) medically separated for persistent medial joint pain.  The knee condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “right knee chondral lesion/pain” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “persistent medial joint pain” as unfitting, rated 10% and with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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:

IPEB – Dated 20081126	VA* - (~1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Medial Joint Pain Condition	5099-5003	10%	Left Knee Anterior Cruciate Ligament Reconstruction with Osteoarthritis	5010	0%	20090309	
Other x 0 (Not In Scope)	Other x 5 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20090604 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board noted that the MEB forwarded a right knee condition to the PEB.  The PEB adjudication did not note left or right knee but described the knee disability which based on all notes in the service treatment record (STR), was the left knee.  The MEB narrative summary (NARSUM) examination noted range-of-motion (ROM) of two knee joints, but labeled both as “right” and then relied upon the description of the knee disability, without specifying right or left, in its assessment and recommendations.  However, the NARSUM documents the left knee injuries, surgery, and persistent pain.  The DD Form 2808, Report of Medical Examination, listed left knee condition status post surgery in the section “summary of defects and diagnosis” and noted exam of the left knee.  There was no evidence in record of symptoms or treatment related to the right knee.  The Board concluded that the right versus left error was due to a simple error of dictation or transcription in the NARSUM and the Board unanimously agreed there was one unfitting knee condition- the left knee- within its scope of review.

Persistent Medial Joint Pain Condition.  The MEB NARSUM notes the CI had a history of left patellar dislocation 16 August 2006.  Notes in the STR indicated that following treatment and rehabilitation of the knee, the CI was returned to full duty in September 2006.  Later VA records indicated that the CI injured his left knee again in approximately December 2006 while running.  The CI was placed on LIMDU for the left knee in August 2008 and had surgery for repair of a torn anterior cruciate ligament (ACL) of the left knee on 24 September 2007.  According to the NARSUM at surgery the CI was also noted to have a full thickness cartilage defect of the medial femoral condyle (femur at the inside of the knee), which was repaired along with a lateral meniscal tear.  The CI was placed on a 6 month LIMDU after surgery, but despite physical therapy following the surgery the CI reported persistent mild medial knee pain and swelling, which increased with running or other high impact activities.

At the MEB NARSUM examination on 15 September 2008, 4 months prior to separation, the CI reported persistent left knee pain as noted above, without instability.  The MEB physical exam noted a normal gait.  There was “severe” medial joint line tenderness noted, without effusion.  The knee joint and patella were both stable and there was negative patellar grind testing and normal patellar mobility and alignment noted.  There were two sets of knee ROM, both labeled as right.  However, the Joint Disability Evaluation Tracking System form dated 4 November 2008 indicated left knee ROM was extension-flexion of 2 to 135 degrees, consistent with one of the two joint ROM noted in the MEB exam.  Left knee X-rays post-operatively reportedly were consistent with the ACL reconstructive surgery.  The MEB NARSUM examiner indicated that the persistent pain was likely due to the cartilage defect and additional evaluation and surgery were recommended but the CI declined further surgery.

At the VA Compensation and Pension (C&P) examination 9 March 2008, a month after separation, the CI reported constant medial knee pain, increased by running or repetitive squatting.  He denied swelling, locking, or giving way of the knee.  He wore a soft knee brace.  The examiner noted there was no effect of the knee on the CI’s usual activities or occupation because he continued activity despite discomfort.  The exam noted a normal gait.  Strength and reflexes of the lower extremities were normal.  Multiple scars about the knee were well healed, stable, and did not affect joint function.  There was no tenderness swelling, or effusion and the knee was stable with full ROM of extension-flexion of 0 to 145 degrees, without observed pain or additional limitation of motion with repetition.  Left knee X-rays noted osteoarthritis changes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the knee condition 10%, coded 5099-5003 (analogous to degenerative arthritis).  the VA rated the knee condition 0%, coded 5010 (traumatic arthritis).  The Board agreed that the evidence in record provides sufficient support for a minimum 10% rating utilizing multiple §4.71a knee codes with consideration VASRD §4.40 (Functional loss) which states “a part which becomes painful on use must be considered seriously disabled.”  Additionally, IAW DoDI 6040.44, the Board may not recommend a lower combined rating than that conferred by PEB.  Therefore, the Board reviewed to see if there was any evidence to support a rating higher than 10%, but there was no evidence of instability, frequent locking and effusion, impairment of the tibia or fibula, or ankyloses.  There was also no limited ROM sufficient to provide a 20% rating based on limited ROM alone.  The CI’s residual pain post-operatively was noted to be due to the cartilage defect of the femur at the knee (MFC) and the Board considered if a higher rating was supported by coding analogously to 5255 (impairment of the femur) according to rating criteria for malunion of the femur.  The 5255 rating criteria are subjective and specified as malunion with `mild’ knee disability for 10% and “moderate” for 20%.  The Board considered that both the MEB and C&P exams noted a normal gait and at the C&P exam the CI reported little to no the impact of the knee pain on his occupation or daily activities.  The Board concluded that the totality of the evidence in record provided strong support characterizing the knee disability as “mild” and not “moderate.”  Thus, the Board found that the evidence supports a 10% rating of the knee condition at separation and no higher.  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 adjudication for the left 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 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 20140529, 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 XX Sep 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 USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC