RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxx	CASE:  PD1201303
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20130730
SEPARATION DATE:  20030915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reservist PFC/E-3 (0311/INFANTRYMAN) medically separated for a right knee condition.  The CI injured his knee playing basketball during a drill weekend prior to activation.  The knee condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “right knee anterior cruciate ligament tear, surgically...” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated right knee anterior cruciate ligament (ACL) tear, surgically reconstructed, as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated.

CI CONTENTION:  The CI writes: “I have had problems with my right knee one (1) month after separation, and to this day still.  Very painful, knee locks.  One month after separation I felt another pop, and ever since my knee tends to up on me when I stretch out to far or making quick sudden movements from a sitting or kneeling position. It is very painful.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting knee condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20030707	VA - (2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Rt Knee Anterior Cruciate Ligament Tear, Surgically Reconstructed	5299-5003	10%	S/P Repair of Rt Knee ACL Tear	5260	10%	20030730	
			Rt Knee Scars, Post Surgery	7802	0%	20030730	
No Additional MEB/PEB Entries	Other x 0	20030730	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20031105 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Knee Condition.  After a right knee injury in 2001, the CI continued to experience pain and giving way.  A magnetic resonance imaging (MRI) study in 2002 reported a complete ACL tear and a medial meniscal tear.  The complete operative report (16 August 2002) is not in evidence; although an ACL reconstruction was performed, the record suggests a miniscule meniscal tear was present that did not require surgical repair.  By 7 months post-operatively the condition had clearly improved with physical therapy, but persistent pain with running prevented full performance of duty requirements.  The narrative summary on 31 March 2003 (6 months prior to separation) notes that the CI experienced pain in the peripatellar region with running activities.  A knee brace was utilized but was only somewhat helpful.  There was “no locking or gross instability” although “occasional giving way of the knee” was reported.  His limitations prevented completion of a 3-mile run or participation in field exercises.  Physical examination noted minimal swelling.  Although no joint line tenderness was present, the patellofemoral joint was diffusely tender.  A Lachman test showed 4-5 millimeters of displacement with a normal endpoint.  A pivot shift test was “trace” positive.  The MEB examiner on 10 April 2003 reported that persistent pain was the reason for separation.  At the VA Compensation and Pension exam performed 2 months prior to separation, the CI reported “more or less constant” pain for which he used no medications.  A knee brace was used for participation in sports.  He complained of an inability to “kneel completely for a prolonged period of time” as well as difficulty running.  Examination revealed a normal gait and no use of a brace.  Tests for instability (drawer) and meniscal pathology (McMurray) were normal.  A repeat MRI performed by the VA on 4 January 2005 (15 months after separation) showed an intact ACL graft, intact meniscal cartilage and mild degenerative changes.  The range-of-motion evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Knee ROM
(Degrees)	MEB ~6 Mo. Pre-Sep	VA C&P ~ 2 Mo. Pre-Sep	
Flexion (140 Normal)	“Normal”	140	
Extension (0 Normal)		0	
Comment	+tenderness	+mild crepitus, painful motion	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA chose different coding options for the condition, but this did not bear on rating.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis).  Although there was no compensable limitation of motion, the VA used a limitation of flexion code (5260), but assigned a 10% rating for painful motion.  The Board agreed that sufficient evidence is present to support a 10% rating with application of §4.59 (painful motion), but considered other pathways to a higher rating.  Because of a possible history of meniscal injury, the Board debated a 20% rating under the 5258 code (dislocated semilunar cartilage).  However it was agreed that the required frequent episodes of locking, pain and effusion into the joint were not present.  The Board also deliberated if additional rating for instability was warranted given the history of ACL injury.  Although the CI complained of occasional giving way after the ACL repair, which may be a sign of instability, other symptoms of instability were not present.  Furthermore, objective examination findings after surgery did not support the presence of symptomatic ACL instability; and the post-separation MRI performed by the VA indicated an intact ACL graft.  Finally, under the 5262 code (“tibia and fibula, impairment of”), malunion with moderate knee disability was not present; thus a 20% rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right knee condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Knee Anterior Cruciate Ligament Tear	5299-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120712, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

xxx
President
Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW 
                                        BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
          (b) CORB ltr dtd 13 Dec 13

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- former USMC
- former USN
- former USN

						      xx
	     					       Assistant General Counsel
						         (Manpower & Reserve Affairs)