RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX		CASE: PD-2017-04240 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20090429

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Bulk Fuel Specialist, medically separated for “right knee pain” 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 - 20081119	VARD - 20090430	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain	5099-5003	10%	
Residuals, Status Post Right Knee Arthroscopic Repair	
5260-5019	
10%	
20081209	
Right Medial and Lateral Meniscal Tear Status Post
Repair which has Healed	Cat II					
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Right Knee Pain. According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent three right knee arthroscopic surgeries to include: a medial and lateral meniscal repair in April 2007; another lateral meniscal repair in September 2007; and a partial synovial debridement in March 2008 which revealed some synovitis of the knee joint with healed medial and lateral menisci. The 28 August 2008 MEB NARSUM examination, 8 months prior to separation, noted CI complaints of right knee pain with impact activity. Physical examination showed tenderness along the medial and lateral aspects of the knee, but no

effusion. Although range of motion (ROM) measurements were not recorded, the examiner noted “full” ROM and made no mention of painful motion. During the 12 September 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported right knee swelling, pain and giving out. Physical examination revealed edema, decreased muscle strength, ands pain with meniscal testing (McMurray’s and Apley’s grind). Knee ROM measurements were not recorded. The 28 October 2008 non-medical assessment (NMA) stated the CI “continues to have difficulties” (from the knee) but did not comment on locking, pain or effusion.   However, a      29 October 2008 supervisor’s letter endorsed right knee “buckling, swelling and pain.”

At the 9 December 2008 VA Compensation and Pension (C&P) examination, 5 months before separation, the CI reported right knee pain, rated at 8/10, which was crushing, aching, sticking, squeezing, cramping, and burning. The pain was aggravated with activity, and there was weakness, stiffness, swelling, giving way, lack of endurance, and locking. Physical examination showed a normal gait with no crepitus, locking pain, or clicks (on meniscal testing). There was tenderness over the knee cap with some edema, and right knee ROM tests revealed flexion to 140 degrees (normal 140), with pain starting at 45 degrees, and extension to 0 degrees (normal
0)	with pain starting at -45 degrees. After repetitive use, there was pain, fatigue, weakness, lack of endurance and incoordination, but no additional limitation of motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right knee condition 10%, analogously coded as 5003 (degenerative arthritis). The PEB also listed “right medial and lateral meniscal tear status post repair which has healed” as a related Category II condition (contributes to the primary unfitting condition but not separately ratable). Panel members agreed that the impairment from this condition was properly subsumed under the overall rating for the right knee pain IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). The VA also rated the right knee condition 10%, but dual coded 5260-5019 (limitation of flexion-bursitis), based on the C&P examination, citing full ROM with pain reported at 45 degrees of flexion and -45 degrees of extension. The panel agreed that there was no compensable limitation of flexion or extension (5260, 5261), but there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45). Code 5259 (cartilage, semilunar, removal of, symptomatic) was alternatively applicable in this case, but the maximum 10% rating under that code provided no benefit to the CI. Panel members also deliberated over whether the CI’s symptoms and disability picture more nearly represented rating criteria using code 5258 (history of dislocated meniscus or loose body causing frequent locking, pain and effusions) to support the sole 20% rating under that code. Although those symptoms were noted in the supervisor’s letter, they were not identified in the commander’s NMA. The NARSUM made no comment about locking or instability, and found no objective evidence of instability or effusion upon examination. And, although the VA examination noted those complaints, upon examination there was no objective evidence of knee instability or locking. The panel majority therefore adjudged that there was insufficient evidence of frequent episodes of “locking,” pain, and effusion into the joint to support a 20% rating under code 5258. 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), and therefore no higher rating than the 10% adjudicated by the PEB under any applicable code. 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.

BOARD FINDINGS: In the matter of the right knee condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication. The single voter for dissent recommends modification to 20% and did not elect to submit a minority opinion. 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.

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

IN REPLY REFER TO:
1850
CORB: 003
10 Sep 20
From: Director, Secretary of the Navy Council of Review Boards To:	XXXXXXXXXXXXXXX
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) Ref:	(a) DoDI 6040.44
1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department ofthe Navy on 13 Aug 2020 for appropriate action.
2.	On 27 August 2020, the Assistant Secretary ofthe Navy (Manpower & Reserve Affairs) accepted the recommendation ofthe PDBR ofno change to your characterization ofseparation 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 ofNaval Records.