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-2017-01912

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 22 Feb 19

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

2.	On 31 January 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from 20 to 30 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, was sent to the office of the Deputy Commandant, Manpower and Reserve Affairs, for correction of your records as stated above.	You will be notified once those changes are complete.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX		CASE: PD-2017-01912 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070615

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Aircraft Maintenance Administration Specialist, medically separated for “chronic right knee pain s/p [status post] 3 arthroscopic surgeries” with a disability rating of 20%.

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 - 20070302	VARD – 20071030 & 20080201	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain…	5299-5262	20%	Chondromalacia and Degenerative Changes, Right Knee	5257-5003	0%*	STR	
Chronic Left Knee Pain	Category III	Residuals, Anterior Cruciate Ligament Tear, Left Knee	5257	0%*	STR	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 10%	
*VA rating, based on remote examination in 2013, rated each knee at 20% coded 5003-5258, effective 20120815.

ANALYSIS SUMMARY:

Right Knee Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI initially injured his right knee is July 2000, and on 16 April 2001, he had an arthroscopic anterior cruciate ligament (ACL) reconstruction with “bone patellar tendon bone” graft and repair of a medial meniscal tear. He continued to have pain and swelling and underwent

arthroscopic ACL shrinkage, debridement of the medial meniscal tear, and removal of a bio- stinger. A third surgery (notch-plasty and ACL shrinkage) was performed in July 2006.

At an orthopedic appointment on 9 October 2006, the CI reported he was unable to run due to pain, and had right knee “popping” as well as “buckling” that made him feel as if he was “going to fall.” He could bend the knee without pain and denied swelling. Physical examination noted joint line tenderness medially and laterally with no effusion. Range of motion (ROM) was flexion of 135 degrees (normal 140) and extension of 0 degrees (normal). On testing (McMurray, reverse McMurray, Lachman, anterior drawer, valgus, and varus), there was no laxity, instability or meniscal signs. Injections of Synvisc (viscosupplementation agent) were recommended.

During the 8 November 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported chronic knee pain after three surgeries. Physical examination revealed full active ROM, medial and joint line tenderness, and negative Lachman (laxity) and McMurray (meniscal) testing. The 22 December 2006 MEB NARSUM examination, 6 months before separation, noted complaints of some right knee pain and popping despite surgeries. Symptoms were aggravated by standing greater than 20 minutes, high impact activities, stair/ladder use, carrying heavy loads and kneeling. Physical examination showed bilateral knee pain, right greater than left, with an antalgic gait. There was mild tenderness along the lateral and medial joint lines and full active ROM. Lachman’s and McMurray testing was negative.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right knee condition 20%, analogously coded 5299-5262 (tibia and fibula, impairment of). The VA rated the right knee condition 0%, analogously coded 5257-5003 (arthritis, degenerative) based on the STR examination, citing failure to report for a scheduled examination and assignment of a non-compensable evaluation without objective evidence of painful of limited motion of a major joint or group of minor joints. Members agreed there was no evidence of marked knee disability to support a 30% rating under code 5262, and no limitation of motion (5260, 5261) or alternative meniscal coding (5258, 5259) which would meet criteria for a rating higher than the 20% awarded by the PEB. 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 right knee condition.

Contended PEB Condition: Left Knee Pain. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended condition was not noted on any of the limited duty forms or implicated in the non-medical assessment. An MRI was completed on 21 February 2007 (after the MEB NARSUM and Informal PEB) noting an ACL tear, mild patellar tendinosis and a small tear of the inferior aspect of the posterior horn of the medial meniscus. In a treatment note on 26 February 2007, the primary care provider referenced the MRI results and diagnosed “left knee sprain ACL complete tear and acute medial meniscal tear” and recommended the CI “remain on LIMDU for right knee pain.” The CI requested reconsideration of the PEB findings on 27 February 2007 and mentioned his left knee as “not being bad enough to be unfit.” The 2 March 2007 Reconsideration PEB continued the left knee condition as Category III (not unfitting).

The CI then underwent a left arthroscopic ACL reconstruction on 30 March 2007, 3 months prior to separation and after the PEB reconsideration, which an orthopedic surgeon deemed as medically necessary. The pre-surgery note indicated he was anticipated to be released to return to work on 29 April 2007 with no restrictions. On 9 April 2007, the CI reported he was doing better since surgery, but complained of swelling, stiffness and decreased ROM, with pain rated as 1-2/10. He was in a weight bearing assistance brace and still used crutches when walking outside the house. On physical examination, the left knee was stable with flexion to 115 degrees flexion and extension to 0 degrees.      The brace was to be continued until follow-up in 5 weeks

(June 2007, approximately 1 week prior to separation). There was no VA examination proximate to separation in evidence.

Although the CI’s left knee condition was reasonably not unfit at the time of the reconsideration PEB, the subsequent medically necessary surgery for ligament and meniscal deficiencies would have made him unfit at the time of separation. As he was still having limited use of the left leg, the panel adjudged that the left knee condition was unfit and recommends the minimal compensable rating for functional loss and slight knee disability analogous to code 5262. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the left knee condition, coded 5299-5262.

BOARD FINDINGS: In the matter of the right knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the contended left knee condition, the panel agrees it was unfitting and recommends a disability rating of 10%, coded 5299-5262 IAW VASRD §4.71a. 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	
Chronic Right Knee Pain S/P Three Arthroscopic Surgeries	5299-5262	20%	
Chronic Left Knee Pain	5299-5262	10%	
	COMBINED	30%