RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00003
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20080430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Mortarman, medically separated for “instability of left knee…” rated 0%.

CI CONTENTION:  The CI contends that his unfitting condition (left knee) was not “properly evaluated during the by the medical board.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 – 20080215	VARD - 20080702	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Instability of Left Knee…	OE*	0%	S/P Left Knee Dislocation…	5299-5024	10%	20080310	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	
*Condition rated based upon Overall Effect

ANALYSIS SUMMARY:  

Instability of Left Knee.    According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI reported having left knee instability that began at age 10.   On 7 March 2006 the CI reported it felt like the tibia dislocated from the femur.  There was laxity of the lateral collateral ligament, but a Lachman test did not demonstrate anterior instability.  Magnetic resonance imaging (MRI) dated 24 March 2006 demonstrated suspicion of an area of intrasubstance injury versus a partial tear involving the distal third of the anterior cruciate ligament (ACL) with some posterior bowing of the posterior cruciate ligament (PCL).  There was also a “significant” bone bruise involving the anterior aspect of the lateral tibial plateau and a question of a possible associated nondisplaced “chip” fracture at the tibial plateau along with one or two adjacent ganglion cysts located at the level of the tibiofibular joint.  Imaging on 17 April 2007 demonstrated several fluid collections projecting in the area of the tibia fibular articulation, which appeared more pronounced compared to the prior study and one fluid collection lateral to the proximal tibial showed improvement.  

On 5 June 2007 the CI reported his leg became numb while walking all day.  Examination under anesthesia on 13 June 2007 was unable to demonstrate marked instability of the proximal tibial fibular joint, although some motion in the anterior posterior plane was present, but no frank dislocation could be achieved.  Nevertheless, the postoperative diagnosis was left knee lateral instability.  Surgery was not indicated

A note dated 18 July 2007 indicated the CI’s knee worsened after deployment and MCMAP (Marine Corps Martial Arts Program) instructing and over the prior few months, examination suggested lateral ligament damage or a posterior corner injury.  As a result the CI was unable to run or exercise.  A note indicated that an MRI was done twice and showed multiloculated cysts only.  Surgery was not indicated.  

The 15 August 2007 MEB NARSUM, 9 months prior to separation, noted complaints of sharp pain and instability on the lateral (outer) portions of the knee.  Physical examination noted no areas of specific joint line tenderness or ligamentous instability and the range of motion (ROM) of the knee joint was full (0-140 normal).  There was no evidence of muscle atrophy.  The remainder of the examination was “unremarkable,” and painful motion was not addressed.  Radiographic studies of the left knee were “fairly normal,” though there was indication of a bony body within a tendon.  

During the 11 September 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported sore and swollen joints due to teaching martial arts.  Physical examination showed left knee tibial/fibular instability, which the examiner noted caused spontaneous dislocations.  

At the 10 March 2008 Compensation and Pension (C&P) evaluation, performed 2 months before separation, the CI reported weakness, stiffness, swelling, giving way, locking, recurrent dislocation, and subluxation (temporary dislocation), but denied heat, redness, lack of endurance, and fatigability.  Pain was reported as constant, characterized as aching and sharp, and was rated at 10/10.  He also reported being unable to perform squatting or kneeling activities, and that prolonged sitting, standing, or walking aggravated his symptoms.  The CI denied the condition affected activities of daily living.  Physical examination showed a normal gait and the left knee showed mild guarding with movement and the presence of crepitus (popping or grinding noise or sensation with movement).  There was no knee swelling, fluid buildup, tenderness, subluxation, or locking pain on examination.  The ROM was recorded as 0-130 degrees, limited by pain, but did not change with repetitive use.  All knee ligaments revealed no instability, and testing revealed no ligament or meniscal (cartilage) damage.  Neurologic examination was normal.  Radiographic studies of the left knee showed no significant findings.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the instability of left knee at 0%, coded overall effect, citing an inability to reproduce instability under anesthesia.  The VA rated the left knee condition 10%, coded 5299-5024 (tenosynovitis), citing objective evidence of painful motion.

The overall effect IAW DoDI 1332.38 E3.P3.4.4. states:  “A member may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability.”  The PEB combined instability of the left knee not reproducible on examination under anesthesia with fluoroscopy and left knee proximal tibia/fibular instability by history.  Panel members noted that instability was actually the CI’s primary condition and would be better classified as a Navy Category I condition and was actually unfitting since it was the knee condition that was disabling and impacted on his performance, while the left knee proximal tibia/fibular instability by history is better classified as a Category II condition that contributes to the unfitting condition.

Although there was evidence at the VA C&P examination of painful motion with functional loss supporting a 10% rating, the panel notes that neither the MEB nor PEB forms mention pain as a component of the CI’s unfitting left knee condition.  Therefore, pain is not in scope.  The panel also considered whether the CI was separated due solely to the instability component of the left knee condition.  Although examination under anesthesia did not demonstrate marked instability of the proximal tibial fibular joint and some motion in the anterior posterior pain was noted, no frank dislocations could be achieved.  Therefore, based on the CI’s history of frequent dislocations including his report of being hit by an RPG in the knee and injuries sustained when he was an MCMAC instructor, there is sufficient evident to support use of code 5257 despite the non-availability of a follow-up MRI post examination under anesthesia.  Panel members noted, however, that the objective findings in the record do not support a rating higher than 10% for a slight disability.  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 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 was therefore no VASRD §4.71a route to a rating higher than 10% under any applicable code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the left knee instability, coded 5257.

BOARD FINDINGS:  In the matter of the left knee condition, the panel unanimously recommends a disability rating of 10%, coded 5257 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Left Knee Instability	5257 	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151223, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 22 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(l) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(m) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(n) PDBR ltr dtd 21 Aug 17 ICO XXXXXXXXXXXXXXXXXXX
	(o) PDBR ltr dtd 18 Aug 17 ICO XXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (o) are approved.  The official records of the following individuals are to be corrected as follows:

     a. XXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.

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

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

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

     e. XXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge. 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

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

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

     i. XXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.

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

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

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

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

     n. XXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.
     
3.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

	XXXXXXXXXXXXXXXXXXX
	Acting