RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02846
BRANCH OF SERVICE:  marine corps	BOARD DATE:  20150514
SEPARATION DATE:  20070615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Warehouse Clerk) medically separated for right knee pain.  The right knee condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The “pin in joint involving lower leg,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic right knee pain, status post osteochondral fracture of the right patella” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals at that time and was medically separated.  

CI CONTENTION:  “Continued severe leg pain, lower back pain.  Hospitalized multiple times for PTSD.”  

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 20070406	VA* - (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain	5299-5003	10%	Status Post Fracture and Repair of the Right Knee	5299-5262	40%	20070820	
Other x 0 (Not In Scope)	Other x 1	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20071115 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY: 

Right Knee.  In December 2005, while deployed overseas, the CI injured his right knee after jumping from a vehicle.  Due to the knee injury, he was medically evacuated from theater.  Magnetic resonance imaging revealed a large osteochondral cartilage fragment in the right knee.  The CI underwent open reduction and internal fixation of this fragment.  After surgery, he continued to have pain in the right knee.  In September 2006, he had arthroscopy on that knee.  Some loose pieces of cartilage were removed from the joint, but the majority of the repaired cartilage fragment was found to be intact and well healed.  In November 2006, the CI underwent a third surgical operation on his right knee.  After surgery, his knee pain was better.  However, he was still unable to run and perform military training, so an MEB was initiated.  The MEB physical examination (PE) was performed on 29 January 2007.  PE of the right knee revealed good quadriceps muscle tone and no joint effusion.  There was mild patellofemoral crepitation with motion.  Patellar mobility was normal, and there was no ligamentous instability.  Right knee range-of-motion (ROM) was measured, and is summarized in the chart below.  

The CI was medically separated from service on 15 June 2007.  On 20 August 2007, 2 months later, he had a VA Compensation and Pension (C&P) exam.  He was wearing a hinged knee brace on the right knee.  He reported that his right knee pain was constant, and it affected his ability to run, climb, or bend.  He was able to perform all required activities of daily living, but had extreme difficulty with certain activities, such as pushing a lawn mower or gardening.  He was not using any medications for his knee pain.  He denied any incapacitation.  On PE, his gait was abnormal, with a moderate limp favoring the right leg.  PE of the right knee showed positive crepitus and guarding of motion.  Flexion was 120 degrees.  With repetitive use there was pain, fatigue, weakness, lack of endurance, and incoordination.  The major functional impact was pain.  Repetitive use did not cause additional loss of motion.  The examiner was not able to perform thorough ligamentous testing due to the pain with motion of the right knee.  However, the examiner did note that there was anterior cruciate ligament (ACL) instability.  The ROM evaluations in evidence which the Board weighed in arriving at its recommendation are summarized in the chart below.

Right Knee ROM
(Degrees)	MEB ~4½ mos. Pre-Sep
(20070129)	VA C&P ~2 mos. Post-Sep
(20070820)	
Flexion (140 Normal)	135	120	
Extension (0 Normal)	0	0	
Comment	mild crepitation	painful motion	

The Board directed attention to its rating recommendation based on the above evidence.  The August 2007 C&P exam was 9 weeks after the DOS.  Based on the results of that examination, the VA assigned a 40% disability rating.  At that August 2007 C&P exam, right knee ROM was 0-120 degrees.  With that degree of motion, the knee condition was essentially noncompensable, based solely upon the VASRD §4.71a codes for loss of knee motion.  However, a 10% rating is warranted under diagnostic code 5259 (Cartilage, semilunar, removal of, symptomatic) when a knee joint is painful following meniscal surgery.  The CI did not have meniscal surgery, but he did undergo three surgical procedures on the right knee.  Therefore, the Board determined that a 10% rating was warranted, based upon chronic knee pain following knee surgery.  The Board then considered the matter of knee instability.  At the August 2007 C&P exam, the CI was wearing a knee brace.  The examiner was unable to perform thorough ligamentous testing due to the pain with motion of the right knee.  However, the examiner did note that there was ACL instability.  The Board determined that an additional 10% rating was warranted for knee instability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a combined disability rating of 20% for the painful, unstable knee condition. 

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB were not 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 unfitting chronic right knee pain, status post osteochondral fracture, and the chronic right knee instability, and IAW VASRD §4.71a, the Board by majority vote recommends a combined disability rating of 20%.  The single dissenting voter did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic right knee pain, after osteochondral fracture of the patella	5299-5259	10%	
Chronic right knee impairment, due to instability	5299-5257	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140605, 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 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX   	 
      (c) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
      (l) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX

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

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

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

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

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

     d. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

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

     f. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

     g. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     h. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

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

     j. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     k. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective 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.

	XXXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)