;:J 1 15 2018

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve A£fairs) COMMANDER, NAVY PERSONNEL COMMAND
Subj:		PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS Ref:	(a) DoDI 6040.44
(b)	PDBR  ltr	dtd 01 Oct 18 ICO XXXXXXXXXX

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

a.	XXXXXXXXXX, 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.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-00108
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20040731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Motor Transport Operations Chief, medically separated for “left knee ACL (acromioclavicular ligament), deficiency status post reconstructive surgery” with a disability rating of 10%.  

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 - 20040427	VARD - 20041026	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee ACL, Deficiency S/P Reconstructive Surgery	5257	10%	S/P Left Knee Surgery	5299-5262	20%	20040716	
Left Knee Medial Collateral Ligament Tear (MCL) Grade 2	Cat II	No VA Placement	
Left Knee Full Thickness Skin Loss, Left Leg Status Post Reconstructive Surgery	Cat II	S/P Left Lower Extremity Injury, S/P Surgery with Muscle Flap and Split Thickness Skin Graft	5399-5312	30%	20040716	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Left Knee ACL Deficiency.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s left knee condition began in February 2003 when the CI was ejected from a tactical vehicle during a motor vehicle crash.  There was a severe injury to the left knee and lower leg with a large open wound, skin loss, and avulsion of tissue anterior to the tibia (degloving injury, below the knee).  Following wound debridement, the CI was medically evacuated to Germany for additional debridement, and then to CONUS.  The CI underwent muscle flap reconstruction to his left leg in March 2003.  The CI had a superficial infection and graft loss in the central area.  The CI had complaints of knee instability and underwent a left knee ACL reconstruction (using hamstring tendons) on 7 August 2003.  There was residual paresthesias in the left leg distal to the injury, decreased endurance and ability to run and knee instability following surgeries.  

The 13 February 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of pain and residual instability with inability to run any significant distance without left knee and lower leg pain and swelling.  Physical examination showed left knee instability with a Lachman’s of approximately 8 mm on the left (compared to 4 mm on the right), a grade I pivot shift test and grade 1 to 2 opening of the medial collateral ligament.  There was a full thickness skin flap on the left lower extremity distal to the knee and paresthesias distal to the skin flap.  Motor strength and capillary refill were normal.  The diagnoses were left knee full thickness skin loss, left leg, status post reconstructive surgery; left knee ACL deficiency status post reconstructive surgery and left knee MCL tear grade 2.  

During the 25 March 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI complained of left leg pain and lower leg neurologic problems.  He used a left knee brace.  Physical examination showed positive anterior drawer and pivot shift testing, with extensive scarring of the left lower extremity and knee (and a left thigh scar from graft).  Examiner noted “left knee laxity/instability, failed ACL reconstruction,” and “left lower extremity trauma with extensive tissue loss and scaring, residual sensory neuropathy.”  The 1 April 2004 non-medical assessment (NMA) indicated the severity of the CI’s injury impaired his ability to mount and dismount certain series of vehicles and “severely impacted his ability to perform his job.”  

At the 16 July 2004 VA Compensation and Pension (C&P) examination, 2 weeks before separation, the CI reported having intermittent left knee flare-ups involving pain, locking, stiffness and popping of the knee and was using a knee brace.  He reported having loss of strength, easier-than-normal fatigue, weakness, and pain involving the left lower extremity.  He also complained of constant numbness below the knee and reported having prolonged infections, intramuscular scarring and adhesion of the scar to the bone as a result of the muscle injury.  He had difficulty performing prolonged standing, prolonged walking, heavy lifting or carrying, running, kneeling or squatting due to his knee and leg.  He missed work three to five times a week because of the knee and the leg condition.  X-rays showed osteoarthritic changes and ligamentous repair in the knee and surgical changes in the proximal tibia.  Physical examination revealed a normal gait with tenderness of the left knee.  There was no instability or laxity of the knee.  The left knee range of motion (ROM) evaluation, following repetitive movement, showed flexion of 135 degrees (normal 140) and extension of 0 degrees (normal).  The examiner noted ROM was limited by pain, fatigue, and lack of endurance, but not weakness or incoordination, with pain having the major functional impact.  

There was an irregularly bordered, significantly disfiguring scar that was hyper-pigmented on the left anterior lateral shin measuring approximately 28 x 13 cm, with associated under-lying tissue loss and tissue depression, but no tenderness, ulceration, adherence, instability, keloid, hyperpigmentation, abnormal texture, or limitation of motion.  Physical examination revealed loss of deep fascia, loss of muscle substance, and impairment of muscle tone involving the left lower extremity below the knee.  There was lowered endurance of the left leg and impairment of coordination of the left knee.  The examiner identified the left leg muscle injury as anterior muscles group XII.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition 10%, coded 5257 (knee, other impairment of - recurrent subluxation or lateral instability).  The PEB listed “left knee MCL tear grade 2” and “left knee full thickness skin loss, left leg status post reconstructive surgery” as related diagnoses (Category II) contributing to the disability in this case.  The panel adjudged the “MCL tear” was appropriately subsumed under the PEB’s knee ACL deficiency rating as code 5257 encompasses all knee instability.  However, the panel adjudged that the “left knee full thickness skin loss, left leg status post reconstructive surgery” was distinctly separate from the knee ACL/MCL condition.  Given the CI’s lack of endurance including no running and inability for prolonged walking (not usually associated with knee instability and use of a brace); and the NARSUM specification of knee and lower leg disability, panel members agreed the evidence reasonably justified that the functional limitations of the “left knee full thickness skin loss, left leg status post reconstructive surgery” contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

The VA rated the left knee condition 20%, analogously coded 5299-5262 (tibia and fibula, impairment of) based on the C&P examination, citing limited and painful motion with additional disability due to fatigue and lack of endurance.  The VA also rated the “S/P Left Lower Extremity Injury, S/P Surgery with Muscle Flap and Split Thickness Skin Graft” 30%, analogously coded 5399-5312, based on the C&P examination, citing a severe disability including findings of loss of deep fascia, loss of muscle substance, impairment of muscle tone, lowered endurance; 28 x 13 cm residual scar with associated underlying tissue loss and tissue depression.  

The panel deliberated the left knee and the left lower extremity conditions simultaneously, considering the potential overlap in symptoms and disability picture between the two conditions and the tenants of VASRD §4.14 (avoidance of pyramiding).  The panel also deliberated on the probative value of the examinations in evidence:  

Regarding rating the left knee ACL/MCL surgery and residuals, the panel adjudged that the instability was between slight (10%) and moderate (20%), but more nearly approximated the slight disability picture.  However, the pain, fatigue, and lack of endurance symptoms/disability noted on the C&P examination to support the VA’s 5262 moderate (20%) rating was best apportioned to the lower leg reconstructive surgery rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the left knee ACL condition.  

Regarding rating the left lower leg reconstructive surgery, the panel considered the tenants of VASRD §4.55 (principles of combined ratings for muscle injuries) and §4.56 (evaluation of muscle disabilities).  The panel considered that the CI had a wound with tissue avulsion, multiple debridement, infection, scarring and loss of central graft area; evidence showing hospitalization for treatment of the wound; record of consistent complaints of cardinal signs and symptoms of muscle disability and evidence of inability to keep up with work requirements.  There were objective findings of loss of deep fascia, loss of muscle substance, impairment of muscle tone, lowered endurance and residual scar with associated underlying tissue loss and tissue depression.  Therefore, the panel adjudged the left lower leg injury and disability most nearly approximated the moderately severe (20%) disability picture under code 5312.  There was no history of shattering bone fracture, open comminuted fracture or intermuscular binding and scarring; or, objective findings of weakness, measureable atrophy, soft flabby muscles, muscle swelling or hardening abnormally in contraction, retained foreign bodies or signs and symptoms worse than those in the moderately severe criteria IAW VASRD §4.56, for any rating higher than 20%.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that the “left knee full thickness skin loss, left leg status post reconstructive surgery” condition was separately unfitting and ratable; therefore, the panel recommends an additional disability rating of 20% for the left lower leg condition, coded 5399-5312.  

BOARD FINDINGS:  In the matter of the left knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the left leg muscle injury, the panel adjudges that it was reasonably separately unfitting, and the panel recommends a disability rating of 20%, coded 5399-5312, IAW VASRD  §4.73.  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	
Left Knee ACL, Deficiency S/P Reconstructive Surgery	5257	10%	
Left Knee Full Thickness Skin Loss, Left Leg Status Post Reconstructive Surgery	5399-5312	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161122, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record