RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03549
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20080715

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Engineer Equipment Mechanic, medically separated for “right knee and leg pain” with a disability rating of 10%. 

CI CONTENTION:  The CI made no specific contention in their application.  The CI’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 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 - 20080219	VARD - 20081219	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee and Leg Pain	5262	10%	Residuals Of Right Tibia/Fibula Fracture …	5299-5262	10%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Right Knee and Leg Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right knee and leg pain began in August 2005 after he suffered closed, displaced fractures of his right tibial and fibular shafts as a result of an injury sustained during a unit physical training soccer game.  Surgery was performed on 27 August 2005 whereby he underwent a right tibial intramedullary nail fixation.  A second surgery in October 2006 removed the hardware.  Following the second surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “pain in joint involving lower leg” for PEB adjudication.

The MEB NARSUM examination conducted on 7 August 2007, 9 months post 2nd surgery and 11 months prior to separation, recorded the CI was improving with physical therapy but was unable to pass the running test (for physical fitness qualification).  Physical examination showed scarring present on the anterior right knee with no effusion, full range of motion (ROM), no tenderness and no signs of instability upon testing.  The CI could squat but had to push in order to stand from a squatting position.  The examiner recommended consideration for a permanent waiver for running.

At the primary care clinic examination on 3 October 2007, 11 months after 2nd surgery and 9 months prior to separation, physical examination demonstrated a normal gait, stance, and balance.  At the orthopedic clinic examination on 1 February 2008, 15 months after 2nd surgery and 5 months prior to separation, the CI reported inability to run, jump or carry heavy objects.  He experienced ongoing pain and swelling in the right knee joint.  Physical examination showed flexion to 100 degrees (140 normal), extension to 0 degrees (normal), pain limited motion, marked tenderness and demonstrated functional loss (the CI could not kneel or tolerate pressure exerted to the front of his knee, below the kneecap).

At the VA Compensation and Pension (C&P) general medical examination in September 2008, 2 months after separation. The CI reported constant right knee pain, 3/10 with flares producing pain at 8/10 intensity.  He further noted that the fracture site (tibia-fibula) was not as painful as the right knee.  Activity (walking, standing, bending, squatting) and weather were exacerbating factors for flares.  The CI treated the pain with medication.  The CI could walk for an hour but could not run or kneel.  Sitting for greater than 20-30 minutes caused pain.  The CI did not use any assistive devices for ambulation nor did he use supportive devices such as a knee brace.  The CI’s right knee condition had minimal effect on his activities of daily living.  Physical examination showed pain on palpation to the medial lower calf area.  There was no drainage, edema, redness, or heat present. No leg length discrepancy, callosities, breakdown, or unusual shoe wear pattern that would indicate abnormal weight bearing was found. There were no constitutional signs of bone disease or hyperextension secondary to trauma.  The right knee appeared normal and aligned with no objective evidence of edema, effusion, abnormal movement, or guarding of movement.  The surgical scar was well healed, moveable and non-tender.  ROM measurements showed knee flexion to 135 degrees and extension to 0 degrees.  There was no evidence of fatigue; weakness; lack of endurance, or additional limitations after repetitive ROM testing.  All tests for instability were negative.

The Board directed attention to its rating recommendation based on the above evidence. The PEB initially found the CI fit for duty concerning his right knee and leg condition.  The CI requested reconsideration of this finding, desiring to be found unfit and compensated for his injury.  Upon reconsideration, the PEB found the CI unfit for his right knee and leg condition, assigning a rating of 10% under the 5262 code (tibia and fibula, impairment of) with slight knee or ankle disability.  The VA also assigned a 10% rating using an analogous 5299-5262 code (tibia and fibula, impairment of) based on the VA C&P examination 2 months after separation, citing mal union of the tibia and fibula with slight knee or ankle disability.  

There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261). 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 PEB and VA used disability coding related to a long bone condition (appropriately coded 5262) as there was evidence of a fracture, non-union, or mal union of the femur or tibia to support consideration under this respective code for knee impairment related to long bone conditions.  Evidence in the record did not support the next higher level of a moderate disability rating of 20% under this code. The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes. There was 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.  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 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 PTSD contended condition was not unfitting.  The CI deployed to Iraq from January 2003-July 2003.  At the NARSUM examination, he was seen by mental health in June 2004 and a diagnosis of PTSD was rendered.  He did not return to the clinic until April 2007 due to problems he had with avoidance, hypervigilance, hyper-startle reaction, irritability, flashbacks and periodic excessive alcohol use for the past 2 years.  He was reluctant to take medication but admitted to self-medicating with alcohol.  His primary complaint was poor sleep.  He reported vague suicidal ideation in the past year with no intent/plan.  Mental status examination (MSE) was essentially normal.  A diagnosis of PTSD was rendered with a Global Assessment of Functioning (GAF) score of 60 (moderate bordering on mild symptoms, impairment).  Interim progress note dated December 2007 noted diagnoses of major depressive disorder, PTSD, and pain disorder with a GAF score of 75 (transient symptoms, slight impairment.)

The PTSD condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that any of 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.  

BOARD FINDINGS:  In the matter of the 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 PTSD contended 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 20140616, 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 9 Aug 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 USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC