RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01402
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20040615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Fixed Wing Aircraft Airframe Mechanic, medically separated for “partial ACL tear, right knee, status post ACL reconstruction” with a 10% disability rating.  

CI CONTENTION:  “Review all conditions.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040420	VARD - 20050415	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Partial ACL Tear, Right Knee, S/P ACL Reconstruction	5099-5003	10%	Degenerative Changes, Right Knee	5010	10%	20050217	
Medial Collateral Ligament Tear, Right Knee	Cat II	Unstable Right Knee … S/P ACL Reconstruction	5257	20%	20050311	
Gastroesophageal Reflux Disease 	Not Unfitting	Acid-Reflux	7308	0%	20050311	
Plantar Fasciitis Bilateral	Not Unfitting 	Bilateral Plantar Fasciitis 	5299-5276	10%	20050311	
Metabolic Stone Disease with Hypercalciuria	Not Unfitting	Metabolic Stone Disease	7508-7509	30%	20050311	
History of Cholelithiasis, S/P Cholecystectomy	Not Unfitting	S/P Cholecystectomy, Stomach Pain and Digestive Problems	7318	10%	20050311	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Right Knee ACL Tear with Reconstruction with Category II Medial Collateral Ligament [MCL] Tear.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI initially injured his right knee while wrestling in 1996.  He sustained an ACL tear and underwent reconstructive hamstring autograph in June 1997.  This was revised (arthroscopic thermal shrinkage of ACL) in April 2000.  Additionally, beginning in March 2002 the CI began to complain of medial instability of his knee.  An MRI on 2 October 2002 demonstrated an “intact ACL in good position.”  Although the radiology interpretation of the MRI was the MCL and remaining ligaments were intact, the orthopedic interpretation appeared to be a partial tear, “2nd - 3rd degree “of the MCL.  

There were multiple STR clinical entries that documented ligamental stress testing of the knee.  The predominant findings were moderate MCL laxity (5-8 mm at 30 degrees flexion) and mild to moderate ACL laxity (Lachman Grade I, 2-3 mm with firm end point).  There was no mention of varus or valgus joint deformity on weight-bearing in any service entry.  X-rays showed normal alignment.  Various entries recorded range of motion (ROM) measurements with flexion from 130-140 degrees (normal 140) and 0 degrees extension (normal), with documentation of painful motion.  Some entries noted an effusion, but others did not, and there were no signs of meniscal impingement (locking).  There was no significant gait disturbance, although there were some observations of guarding the knee with ambulation.  The CI was prescribed an ACL knee brace and STR entries corroborated that it remained in use.  Orthopedics opined that he was a candidate for MCL reconstructive surgery; but it would necessitate a third limited duty board with a protracted rehabilitation and no guarantee of return to full duty, 

The 1 March 2004 MEB NARSUM examination, 3 months prior to separation, documented that the CI remained in a brace and continued to report subjective instability with persistent pain rated 6/10 at rest and 8-8½/10 with activity.  Functional limitations were not specified.  The physical examination recorded a “trace” effusion, medial tenderness, “approximately 5 mm of medial joint space widening with valgus stress testing,” and a Lachman test of 2-3 mm with a firm end point.  Measured ROM was flexion to 130 degrees and 0 degrees extension, without addressing painful motion.

At the 17 February 2005 VA Compensation and Pension (C&P) examination, 8 months after separation, the CI reported continued instability of the knee and requirement for a brace.  He noted periodic swelling and persistent pain rated 6/10.  The examiner stated, “Repetitive motion increases the pain and instability.”  The physical examination recorded a normal gait, but noted that when the brace was removed there was “20 degrees of valgus deformity on weight bearing” (contrary to all service evidence).  Other findings included “mild” effusion, patellar and medial tenderness, a “loose” MCL, and a positive Lachman with 1+ ACL laxity.  Measured ROM was flexion to 130 degrees and 0 degrees extension, specifying painful motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB provided for a 10% rating of the knee joint itself, coded 5099-5003 (analogous to degenerative arthritis).  In addition to the unfitting joint condition, which the nomenclature indicated was focused on the ACL injury and surgical residuals, the PEB adjudicated the MCL tear as a separate condition, determined to be Category II (conditions that contribute to the unfitting condition) and not service ratable.  The VA rated the knee joint itself 10%, coded 5010 (traumatic arthritis), citing painful motion from the C&P examination.  In addition, the VA conferred a rating of 20% for ligamental instability under code 5257 (knee, other impairment), citing the applicable criterion of “moderate” instability.  

With regards to the primary joint rating of 10%, conferred by both the PEB and the VA, the panel agreed that this was appropriate.  Although there was no compensable limitation of motion under codes 5260 and 5261 for limitation of flexion or extension, members agreed that there was satisfactory evidence of painful motion to support the minimum 10% joint rating (per VASRD §4.59).  There was no evidence 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 those codes.  There was no fracture, nonunion, 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 thus no VASRD §4.71a higher rating option than the 10% for the primary joint condition.

The panel was compelled in this case to consider the option of separate ratings for instability and ROM limitation (to include painful motion).  Members agreed that, although the PEB appeared to split the condition by separate ligament pathology, the functional limitations with regard to overall fitness and overall joint instability could not be parsed between the contributions from the ACL and MCL injuries.  The effect of the PEB approach was to divest the unfitting service rating from consideration of separate ratings for limited or painful motion and instability.  

The panel agreed that the degree of instability in evidence at separation was significant enough to justify a separate service rating for it.  Objective examination findings by multiple providers established the presence of mild to moderate joint laxity in two planes (MCL and ACL).  The CI continued to require a brace for even routine activities.  The orthopedic opinion that he was a candidate for surgery at the time of separation indicated that there remained significant functional impairment due to instability, and that retention would require remedy.  All of this supported a conclusion that instability contributed significantly to the CI’s inability to meet fitness requirements and, in fairness, merited separate rating.  

Having so agreed, the panel turned to deliberation of the appropriate rating for instability under code 5257.  Members agreed that the 30% (severe) criterion was not supported, and deliberated whether the 20% (moderate) or 10% (slight) criterion was best supported by the evidence.  Members agreed that the degree of instability and resulting functional limitations in evidence were not fairly characterized as slight, and were best aligned with moderate instability.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends that the right knee condition be separately rated at 10% under code 5010 and 20% under code 5257.  

Contended PEB Conditions:  Gastroesophageal Reflux Disease (GERD), Plantar Fasciitis, Metabolic Stone Disease with Hypercalciuria, and History of Cholelithiasis.  The panel’s main charge is to assess the fairness of the PEB’s determination that conditions were not unfitting.  These conditions were determined to be Category III (not separately unfitting or contributing to the unfitting condition).  The CI had a chronic history of heartburn (onset 1997) that was diagnosed as GERD, and a gastroenterology addendum to the NARSUM documented that it was controlled on medication (Aciphex).  The CI was diagnosed with pes planus and plantar fasciitis in 2003.  A podiatry addendum to the NARSUM documented that the condition was being treated with orthotics and was stable, with some bilateral heel tenderness but “a normal, non-painful” gait.  The CI suffered from longstanding kidney stone disease (onset 1999) that was due to a metabolic disorder with calcium retention in the urine.  A urology addendum to the NARSUM documented treatment of the metabolic disorder with medication (hydrochlorothiazide, Urocit-K); and, although he was still forming small stones, these had been easily passed without any recent need for intervention.  The CI underwent surgery (laparoscopic cholecystectomy) for cholelithiasis (gall stones) in December 2003.  A post-operative note of 4 March 2004 (3 months before separation) documented that he “feels great [with] no recurrence of biliary problems.”  None of the above conditions were subject to limited duty boards and none were implicated by the commander’s non-medical assessment.  There was no performance-based evidence from the record that any of them significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the right knee condition, subsuming the associated Category II condition, and IAW VASRD §4.71a and references cited above, the panel recommends separate disability ratings of 10% under code 5010 for limited or painful motion, and 20% under code 5257 for instability.  In the matter of the contended GERD, bilateral plantar fasciitis, metabolic kidney stone disease, and history of cholelithiasis, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective  the date of medical separation: 

CONDITION	VASRD CODE	PERMANENT RATING	
Ligamental Injuries with Surgical Residuals, Right Knee	5010	10%	
Anterior Cruciate and Medial Collateral Ligamental Instability, Right Knee	5257	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161010, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs 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 May 18 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 07 Jun 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 05 Jun 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 13 May 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 18 May 18 ICO XXXXXXXXXXXXXXXXXX

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

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

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

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

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

     e. XXXXXXXXXXXXXXXXXX, former USMC: 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.