DEPARTMENT  OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

IN REPLY REFER TO

1850
CORB:003
12 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards 
PD-2017-01162 

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr dtd 5 Feb 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy of 15 October 2019 for appropriate  action.

2.	On 31 January 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-01162 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070731

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Assault Amphibian Vehicle Repairman, medically separated for “anterior cruciate ligament [ACL] insufficiency” of the left knee with a disability rating of 20%.

CI CONTENTION: In addition to the left knee condition, the CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20070503	VARD - 20070818	
Condition	Code	Rating	Condition	Code	Rating	Exam	
ACL Deficient [Left] Knee	5262	20%	Left Knee Degenerative Joint Disease	5299-5257	10%	20070622	
Partial Meniscectomy	Category II					
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:

Left Knee Condition. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent a series of left ACL reconstructions, each associated with reinjury and with at least one meniscal tear. The last surgery (ACL reconstruction with allograft and debridement of medial meniscal tear) was on 13 December 2006 (8 months before separation). Post-operative STR provider notes documented an uncomplicated course with restoration of normal range of motion (ROM) and a normal gait. There was no documentation  of persistent effusion, impingement (objective locking) or other VASRD-ratable findings, although

stability testing was not addressed in any clinical notes after the final surgery. Follow-up X-rays showed surgical changes with normal alignment and intact hardware.

The 12 April 2007 MEB NARSUM examination, 4 months prior to separation, documented that the CI was “doing fairly well [and] making his gains” after the last surgery, but he was still prohibited from “running, forced marches and field work.” The physical examination recorded a “trace” effusion and made no note of tenderness or impingement. The joint was stable to stress testing in all planes other than minimal ACL laxity, stating “Lachman better than 1+ with a solid endpoint.” Measured ROM was flexion to 130 degrees (normal 140) and 0 degrees of extension (normal); painful motion was not addressed.

At the 22 June 2007 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported “constant” left knee pain rated 7/10 with subjective instability and locking aggravated with “physical activities” (the only specified limitation was “twisting movements”). The physical examination recorded a normal gait without use of a brace, and no effusion, tenderness, impingement or instability. The examiner noted nonspecific ACL “instability” with a positive drawer sign, but did not clarify the severity. Measured ROM was flexion to 140 degrees and 0 degrees of extension, specifying the absence of painful motion and no ROM degradation with repetition.  X-rays showed early degenerative changes.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the left knee condition 20%, coded 5262 (tibia and fibula, impairment). No rationale was elaborated, although the 20% criterion of code 5262 was “moderate” contiguous knee disability. The residuals of the associated meniscectomy was adjudicated as Category II (a condition that contributes to the unfitting condition but is not separately ratable). The VA rated the condition 10%, diagnosed as “degenerative arthritis” but coded 5299-5257 (analogous to knee, other impairment), based on the C&P examination and stating that “the criteria for this level of evaluation more closely approximated your symptoms.” Code 5257 provides ratings for knee instability: 10% for “slight,” 20% for “moderate,” and 30% for “severe.”

The panel noted that the PEB’s Category II condition (residuals of meniscectomy) was subject to a 10% rating independent of any other criterion under code 5259 (cartilage, semilunar, removal of, symptomatic). There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261), other than by application of VASRD §4.59 (painful motion) in support of the minimum 10% rating. The latter would have to be in lieu of, not in addition to, rating under code 5259 in order to avoid pyramiding (VASRD
§4.14). There was no evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions providing for a higher rating under code 5258. There was no fracture with nonunion or malunion to support a higher rating under the PEB’s 5262 code or alternatively under code 5255 (femur, impairment of). There was thus no VASRD §4.71a criterion in evidence to support a rating higher than 10%.

The panel considered the option of separate rating for instability under code 5257, and the PEB’s overall rating of 20% may have been intended to subsume both a primary rating (possibly the Category II condition) and additional rating for instability. It was noted, however, that the primary rating would be limited to 10% as above; and, members agreed that the minimal ACL laxity as elaborated in the NARSUM, and not quantified by the C&P examiner, would not justify a rating higher than 10% under the above criteria of code 5257. Dual coding and rating, therefore, would not be advantageous to the PEB adjudication. 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 condition.

BOARD FINDINGS. In the matter of the left knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends no modification or re- characterization of the CI’s disability and separation determination.