RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03924
BRANCH OF SERVICE: MARINE CORPS 	BOARD DATE:  20150702 SEPARATION DATE:  20080515

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Tactical Data Specialist) medically separated for a right knee condition. The right knee could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) twice and referred for a Medical Evaluation Board (MEB).  The “health examination of defined subpopulations” and “chronic pain due to trauma” were the only two conditions forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “chronic medial sided right knee pain s/p anterior cruciate ligament (ACL) reconstruction” as unfitting, rated 10%, with 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 20080123	VA* - (~1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
CHRONIC MEDIAL SIDED RIGHT KNEE PAIN S/P ACL RECONSTRUCTION	5299-5003	10%	RESIDUALS OF RIGHT KNEE ACL
RECONSTRUCTION	5260	10%	20080402	
			RIGHT KNEE INSTABILITY, S/P ACL RECONSTRUCTION	5257	10%	20080402	
Other x 0 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20080912 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Knee Condition.  While performing unit physical training, the CI injured his right knee on 21 September 2006.  Initially diagnosed as a sprain, conservative treatment ensued.  He re-injured the right knee in October 2006 resulting in worsening pain and slight instability.  Radiographic work-up revealed a complete tear of the ACL and contusions (bruising) of the medial and lateral femoral condyles and tibia plateau.  On 28 December 2006, the CI underwent a right ACL reconstruction.  He did well post-operatively with progressive physical therapy (PT).  Subsequent examinations noted a normal gait and mild right-sided quadriceps atrophy.  A Lachman’s stability test was normal at 2-3 millimeters.  Despite LIMDU, aggressive rehabilitation, and medication, his right knee pain continued and he was referred to an MEB.  At the narrative summary (NARSUM) examination (28 November 2007; 6 months prior to separation), the CI’s chief compliant remained, “right knee pain.”  The physical examination (PE) of the right knee noted medial joint-line tenderness.  There was no instability, no effusion, and no decrease in range-of-motion (ROM).  The examination was silent regarding pain on motion.  X-rays revealed post-surgical changes with hardware in place.  The examiner’s diagnosis was chronic medial sided right knee pain status post ACL reconstruction.  At the VA Compensation and Pension (C&P) examination (02 April 2008; 15 months after surgery and 6 weeks prior to separation) the CI reported intermittent aching right knee pain associated with weakness, lack of endurance, and fatigability predominantly when he exercises.  “[The CI] is able to function without medication.”  He denied having any periods of incapacitation.  The VA PE revealed decreased and painful motion.  There was no evidence of edema, effusion, weakness, tenderness, guarding, or instability; however, the drawer sign was mildly positive.  The VA examiner noted “…limited ROM and mild instability” in its diagnosis.  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)	MEB ~6 Mo. Pre-Sep
(20071128) 	VA C&P ~1 Mo. Pre-Sep
(20080402) 	
Flexion (140 Normal)	FROM	120	
Extension (0 Normal)		0	
Comment	tenderness	painful motion	
§4.71a Rating	10%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis) whereas the VA and assigned a combined 20% rating; 10% under 5257 (other knee impairment) and 10% under 5260 (flexion limitation) citing functional impairment and instability.  While there was no evidence of compensable limitation of motion, Board members agreed that the PEB’s 10% rating was supported by sufficient evidence of painful motion (§4.59), either directly or indirectly as indicated by the presence of tenderness.  Members then deliberated if instability was present to a degree for additional rating.  Board members discussed and considered the notation from the VA examiner with regards to the Drawer test being ‘mildly positive’ and agreed with the AO’s opinion that without a defined parameter of the word ‘mild’ as well as absent comparison with the unaffected knee provided minimal to no evidence of the existence of any joint instability.  Therefore, 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’s adjudication for the right 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 right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right knee (instability) condition and IAW VASRD §4.71a, the Board unanimously recommends no additional rating.  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 20140806, 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 1 Dec 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:

- XXXXXXXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)