RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-04911 BRANCH OF SERVICE:  NAVY	SEPARATION DATE: 20080320

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, medically separated for “left ACL [anterior cruciate ligament] tear” with a disability rating of 20%.

CI CONTENTION: In addition to the Category I, II, and III conditions adjudicated by the PEB, the CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and 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 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 - 20071203	VARD - 20080523	
Condition	Code	Rating	Condition	Code	Rating	Exam	
ACL Tear, Left	5257	20%	S/P Left ACL Reconstruction…	5299-5262	20%	
20071211	
Injury of Left Knee …	
Cat II					
Back Pain		Lumbar Strain	5237	10%		
Right Side Knee Pain		Right Knee Strain	5299-5260	0%		
PTSD	Cat III	PTSD	9411	50%	20080102	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

Left ACL Tear (Subsuming Category II Left Knee Injury). According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent a series of left knee surgeries following injuries to the ACL and meniscus in 2006. The surgeries included a meniscectomy concluded with a repeat ACL reconstruction and debridement in December 2006, 15 months before separation. A final 9 February 2006 limited duty (LIMDU) board,(2 months after the final surgery, documented continued pain, but the CI denied any locking or instability. The physical examination recorded a “mild” effusion, “mild” tenderness, stability to stress testing in all planes (negative Lachman), no impingement (objective locking), and no note of gait disturbance or use of a brace. Measured range of motion (ROM) was flexion to 110 degrees (normal 140) and 0 degrees extension (normal).

The 22 October 2007 MEB NARSUM examination, 5 months prior to separation, noted complaints of persistent left knee pain rated 3/10 on average and “instability with difficulty getting back to

his normal running activities.” The physical examination recorded joint tenderness without note of effusion, slight ACL laxity (“trace” Lachman and pivot shift, stable in all other planes), no “mechanical symptoms,” and no note of gait disturbance or use of a brace. Measured ROM was flexion to 125 degrees and 0 degrees extension. The MEB’s DD Form 2808 physical examination a week later documented nonspecific tenderness and effusion with grossly normal ROM and no note of instability or impingement.

At the 11 December 2007 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported continued left knee pain aggravated by prolonged walking and standing, and stated that he was “not having difficulties with activities of daily living [and] the knee is no longer giving out [but] does not feel as stable as his right knee ... rates it as 80% stability.” The physical examination recorded tenderness, normal strength (5/5) and gait, use of a soft sleeve (not a brace), and no effusion, impingement or objective instability (“negative Lachman”). Measured ROM was flexion to 135 degrees and 3 degrees extension.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the left knee condition 20%, coded 5257 (knee, other impairment) which provides for rating of instability. Although no criterion was cited by the PEB, VASRD §4.71a stipulates “moderate” instability for a 20% rating under code 5257, which also confers a 10% rating for “slight” and 30% for “severe” instability. The VA also rated the condition 20%, but under code 5299-5262 (analogous to tibia and fibula, impairment), based on the C&P examination and citing “painful limited [ROM] with increased fatigability and decreased endurance.” The VASRD §4.71a criteria of code 5262 for rating contiguous knee disability are 10% for “slight,” 20% for “moderate,” and 30% for “severe.”

The panel first agreed that the PEB diagnosis of Category II conditions that contribute to the unfitting condition but are not separately ratable for the “injury of left knee, internal derangement of knee medial meniscus,” was intrinsic to the rated condition such that a separate rating could not be supported without violation of VASRD §4.14 (avoidance of pyramiding), and was thus appropriately subsumed in the same rating for the unfitting condition.

With regards to the primary rating, there was no limitation of motion which supported a minimum compensable rating under the diagnostic codes for limitation of flexion or extension (5260, 5261). There was no evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions providing for a higher rating under code 5258. Code 5259 (cartilage, semilunar, removal of, symptomatic), however, was applicable to this case and provides for a 10% rating independent of any other criterion. The panel considered rating for contiguous joint disability under the VA’s code 5299-5262 (criteria above), but members agreed that the functional impairment in evidence at separation (normal gait, routine mobility and activities unaffected) could not be reasonably characterized as more than moderate. Thus, this option was not favorable over the PEB rating.

The panel acknowledged that the option of dual rating for instability and limited or painful motion (IAW VA Training [FAST] Letter 04-22 of 1 October 2004) was applicable to this case, since code 5259 (applicable as above) has been determined to qualify as a painful motion code that would convey a 10% rating in addition to rating for instability. Furthermore, the panel assigned significant weight to the PEB’s rating under code 5257 as an indication that the residual instability, whatever its severity at separation, was itself unfitting. The panel thus agreed that a separate rating for instability was indicated, in addition to the VASRD-mandated rating of 10% under code 5259 as above. All members agreed, however, that the degree of instability in evidence at separation could not reasonably be characterized as moderate.

The panel then deliberated whether the residual instability in evidence at separation merited the minimum 10% rating under code 5257, or whether it failed to satisfy the 10% criterion. It was noted that there was no objective instability with stress testing by either the final LIMDU

examiner after surgical recovery and before the NARSUM, or by the C&P examiner after the NARSUM and more temporally probative to separation. The NARSUM itself noted only minimum instability confined to a single plane with objective testing. The NARSUM and the C&P indicated that the residual instability was mostly subjective and manifested only with running or more demanding activities, and that a knee brace was not required even then. Members thus concluded that there was no significant objective disability for purposes of separate rating (in line with the VA decision), and that the minimum 10% criterion was not reasonably satisfied. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating under code 5259 and an additional 0% rating under code 5257 for the left knee condition.

Contended Category II Conditions: Back Pain and Right Knee Pain. The CI developed pain in his back and right knee which were attributed to compensation for his left knee condition. There were no specific STR provider entries that were probative to the functional impairment associated with either condition. Lumbar and right knee X-rays were normal. Functional limitations were not elaborated for either condition in the NARSUM. The pre-separation VA C&P (same as above) did not specify functional limitations for the right knee, but noted exacerbation of the back pain with exercising, bending, and prolonged sitting. The LIMDU boards were directed at the left knee only, and the commander’s non-medical assessment (NMA) made no note of complaints or limitations attributable to either complaint.

With regard to rating criteria, there were no STR provider entries that documented any ROM limitation, painful motion, or other ratable criteria for the lumbar spine or right knee. The final LIMDU board recorded normal neurological findings with regard to the back, but neither it nor the NARSUM documented lumbar ROM or noted any tenderness, painful motion, or other ratable spine criterion. The NARSUM documented the absence of right knee instability and recorded ROM as flexion to 135 degrees and 5 degrees of hyperextension, without note of painful motion. The C&P examination of the back recorded tenderness without spasm or note of abnormal contour and normal neurological findings. Recorded ROM was flexion to 85 degrees (normal 90) and combined ROM of 235 degrees (normal 240), specifying painful motion. The C&P right knee examination recorded the absence of effusion without note of instability. Measured ROM was normal for flexion (140 degrees) and extension (0 degrees), specifying the absence of painful motion or ROM degradation with repetition.

The panel directed attention to its recommendations based on the above evidence. Its first charge was determining whether the lumbar or the right knee conditions were subject to separate service ratings. When determining whether a separate rating for Category II conditions contributing to the unfitting condition, but not separately ratable is warranted, unless there is a VASRD-sanctioned justification for not rating them (e.g., avoidance of pyramiding, etc.), the panel accepts the PEB acknowledgement that they are implicated as unfitting. It thus considers each condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.

In this case, although the back and right knee pain were judged to be a consequence of the left knee condition, there is no VASRD stipulation that such conditions are not eligible for rating. Although there was little evidence to implicate either of the conditions as unfitting, members agreed that there was not a preponderance of evidence for concluding that they were not unfitting (as per the above standard for Category II conditions). The panel thus agreed that each of the conditions was eligible for separate service rating.

With regard to the lumbar rating, there was evidence from the pre-separation C&P examination for two criteria that would satisfy a minimum 10% rating: the VASRD §4.71a spine criterion of flexion greater than 60 degrees but not greater than 85 degrees, and the VASRD §4.59 stipulation of a minimum 10% rating for painful motion. There was no evidence for more severe ROM

limitation, muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, or other criterion to support a rating higher than 10%. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends the lumbar condition as separately unfitting with a 10% rating under code 5237 (lumbar strain).

With regard to the right knee rating, members agreed that there was no evidence in support of any minimum compensable criterion (consistent with the VA rating opinion). There was no compensable ROM limitation, no satisfactory evidence of painful motion or instability, and no evidence in support of any other ratable criteria as elaborated above for the left knee rating. After due deliberation, considering all the evidence and with deference to reasonable doubt, the panel recommends the right knee condition as separately unfitting with a 0% rating under code 5099-5024 (analogous to tenosynovitis).

Contended Category III Condition: Post-Traumatic Stress Disorder (PTSD). The CI was diagnosed with PTSD in 2005 after redeployment from Iraq. He was treated for a period of time with counseling and a single medication (Zoloft, subsequently discontinued). There was no STR evidence for suicidal ideation or other acute features and no psychiatric hospitalizations. A 14 November 2007 mental health (MH) addendum to the NARSUM , 4 months before separation, documented that the CI had not been treated for PTSD for over a year, and was “able to manage his symptomatology successfully without treatment during this period ... and ... was not currently in need of treatment ....” The mental status examination (MSE) was normal except for a “tired ... sad” mood. There was no suicidal ideation or other acute features and cognitive testing was normal. The Global Assessment of Functioning (GAF) assignment was 61-70 (mild range of impairment) and the DoDI 1332.39-derived assessment of social and industrial impairment was “mild.” The examiner opined, however, that the CI did not meet retention standards because of the “likelihood of additional trauma related to military environment.” As above, PTSD was not implicated in any LIMDU. The commander’s NMA did not note any MH diagnosis or impairment and stated that the CI continued to work in his specialty.

A 2 January 2008 VA C&P examination for PTSD, 3 months before separation, corroborated the stable status reflected by the service MH addendum. The MSE was normal and the GAF assignment was 70. The examiner stated the CI was “coping reasonably well [and] denies occupational dysfunction.” The VA’s 50% rating was based on the provisions of VASRD §4.29 (minimum 50% rating for 5 months), not on §4.30 rating criteria. A VA MH provider note of 29 July 2008, 4 months after separation, described the CI as “mentally stable,” documented a normal MSE, and noted that he was a student in health management.

The panel’s main charge is to assess the fairness of the PEB determination that the Category III PTSD was not unfitting. Although the MEB psychiatrist opined that the condition was not compatible with retention, the addendum itself documented a stable condition with no need for continued treatment. Members agreed that the MEB psychiatrist’s opinion that the risk of additional trauma precluded continued military service was overly speculative, and was counter to the reality that numerous members remain on active duty after successful treatment of PTSD. There was insufficient performance-based evidence from the addendum itself, or from the overall record, that PTSD 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 Category III adjudication for PTSD, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the left knee condition (subsuming the Category II meniscal injury as above) and IAW VASRD §4.71a, the panel recommends separate disability ratings of 10% under code 5259 and 0% under code 5257. In the matter of the contended Category II right knee condition, the panel recommends it as a separately unfitting condition rated 0%, coded 5237 IAW

VASRD §4.71a. In the matter of the contended Category II lumbar condition, the panel recommends it as a separately unfitting condition rated 10%, coded 5099-5024 IAW VASRD
§4.71a. In the matter of the contended post-traumatic stress disorder, the panel recommends no change in the PEB Category III adjudication. As the proposed new disability ratings result in no change to the combined disability rating previously assigned, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

DEPARTMENT OF THE NAVY
SECRETARY OF TIIE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY 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:	

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 of the Navy on 13 Aug 2020 for appropriate action.

2.	On 27 August 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR ofno 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.