Author: JOHN J. D'ORAZIO
Last saved by: julie.raveau
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXX	CASE:  PD1201645
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20130503
SEPARATION DATE:  20031215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Sgt/E-5 (6323/CH- 53 Avionics Technician) medically separated for a right knee condition.  He originally injured his right knee in September 2001 and underwent surgery in November 2001.  The CI had two additional surgeries within the next 2 years after reinjuring his right knee.  Post-operatively, he continued to experience pain and instability.  The knee condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “persistent anterior knee pain, status post anterior cruciate ligament reconstruction,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated “persistent anterior knee pain, status post anterior cruciate ligament reconstruction” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated with that disability rating.

CI CONTENTION:  “PEB finding date 20031119 was for “PERSISTENT ANTERIOR KNEE PAIN POST ANTERIOR CRUCIATE LIGAMENT RECONSTRUCTIVE (71946).  However in Operative Report from R--- (Antelope Valley Surgery Center) dated 20030820 report states in Diagnostic 2 there was a “Complete shredding of the complete tear of the ANTERIOR CRUCIATE LIGAMENT repair and loss of the entire reconstruction of the ANTERIOR CRUCIATE LIGAMENT.  This surgery report is in contrast to the Medical board report dated 20030627 by Dr. I--- in which he states (Present Diagnosis:  PERSISTENT ANTERIOR KNEE PAIN, STATUS POST ANTERIOR CRUCIATE LIGAMENT RECONSTRUCTION SLIGHTLY ATTENUATED BUT INTACT GRAFT) and the PEB Board finding.  After looking over the reports it appears that the decision by the PEB was made by using the Medical board report and not taking into consideration the Operation report filed with the PEB board package.  Therefore the Unfit decision should be upheld with a higher rating.”

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; 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.

RATING COMPARISON:  

Service IPEB – Dated 20031112 | VA – (1 Mo. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Persistent Anterior Knee Pain, Status Post Anterior Cruciate Ligament Reconstruction | 5299-5003 | 10% | Status-Post Anterior Cruciate Ligament Reconstruction and Partial Medial Meniscectomy with Residuals, Right Knee | 5299-5257 | 20% | 20031119
No Additional MEB/PEB Entries | Other x 4 | 20031120
Combined:  10% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20040430 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that additional relevant diagnostic surgical evidence was not considered by the Service in determining a separation rating.  It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected Service improprieties in the processing of his case.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.  In addition to Service records, the Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.

Persistent Anterior Knee Pain Condition.  The CI originally had a sport-related injury to his right knee in September 2001.  A torn anterior cruciate ligament (ACL) was addressed arthroscopically in November 2001, followed by rehabilitative treatment.  The CI re-injured his right knee (buckled and popped) while stepping from an aircraft in January 2002, and required a right ACL allograft reconstruction in March 2002.  He did well post-operatively with progressive physical therapy (PT) until another re-injury occurred during physical combat training in March 2003.  A “limited” radiologic exam (limited, due to in-place knee brace) revealed a small joint effusion.  The service treatment records (STR) revealed two more episodes (June and July 2003) of right knee “buckling” with an audible “pop.”  On 20 August 2003 (2 months after the MEB, 3 months prior to the PEB), the CI underwent a partial medial meniscectomy, chondroplasty, and resection of plica and cicatrix tissue (scar) build-up causing internal derangement of the right knee; and, in addition, resection of the severely torn, previously reconstructed ACL was also performed.  It was not stated in the operative report if the ACL was reconstructed.  The goniometric range-of-motion (ROM) 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) | NARSUM ~ 6 Mo. Pre-Sep | VA C&P ~ 1 Mo. Pre-Sep
Flexion (140 Normal) | 140 | 135
Extension (0 Normal) | 0 | 0
Comment | +Tenderness, crepitus. +“trace” pivot shift,       1+ Lachman | + tenderness, crepitus, painful motion; +”Mild” McMurray & Drawer
§4.71a Rating | PEB 10% | VA 20%
5003 | 10% | 10%
5257 | 10% | 10%

At the narrative summary (NARSUM) exam performed 6 months prior to separation, the CI reported right knee pain and instability with “…giving away with activities of daily living.”  He reported the wearing of an ACL brace at all times.  The MEB physical examination noted no effusion, normal valgus and varus stability, and tenderness to lateral aspect of the right knee.  The Lachman test of the ACL noted the presence of an end point.  The examination was silent regarding pain on motion.  X-rays and magnetic resonance imaging (MRI) performed in March 2002 revealed post-surgical and ACL reconstructive changes.  The examiner’s assessment was that the ACL graft was intact.  The pre-operative orthopedic assessment on 3 July 2003 (2 weeks after the MEB and 6 weeks prior to the final surgery) reported the presence of a limp and an effusion.  Examination findings were consistent with possible meniscal injury, but there were no signs of ligament instability.  The presumptive diagnosis was chronic internal derangement, chondromalacia and probable plica.  At the VA Compensation and Pension (C&P) examination on 19 November 2003 (3 months after surgery and one month prior to separation) the CI reported intermittent right knee pain, instability, locking, weakness, fatigue, and lack of endurance with a reported symptom duration of 10 minutes, worse with weight bearing or physical activity.  He reported an inability to run or jump, and difficulty with prolonged walking, standing, kneeling, and squatting; but could perform daily activities such as walking, climbing stairs, driving, pushing a lawn mower, and gardening.  Additionally, he reported missing a month of work as a result of his knee condition, although it was not stated if this was related to his recent surgery.  He reported taking over the counter medication for pain control as well as wearing a knee brace.  The physical examination revealed a slight decrease in ROM limited by pain, fatigue, and lack of endurance.  His gait was noted to be normal and he did not have his brace at this exam.  Although a drawer test (a test of ACL stability) was “mildly positive on the right” it was also stated there was “no evidence of… abnormal movement, or instability.”  The McMurray test (a possible indicator of meniscal pathology) was also noted to be “mildly positive.”  Swelling was absent.   Pain was considered to have the major functional impact on the CI.  The STR did not contain any post-surgical follow-up treatment records after the CI’s surgery in August 2003.

The Board directs attention to its rating recommendation based on the above evidence.  Because it is the only examination in evidence following surgery and near the time of separation, the Board concluded that the C&P exam findings best reflected the knee condition at the time of separation, and therefore assigned it higher probative value in its deliberations.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis); and documents associated with the PEB proceedings indicate that review of the August 2003 operative report was accomplished.  Using an analogous 5257 code (knee, other impairment of) the VA assigned a 20% rating, but the rating decision acknowledged that evidence of the “moderate subluxation or lateral instability” required for that 20% rating was lacking.  A rating higher than 10% was justified by the VA by considering the condition “in its entirety,” which appeared to include painful motion and limitation of flexion.  While there was no evidence of compensable limitation of motion, the Board agreed that the PEB’s 10% rating was supported under the 5003 coding pathway by sufficient evidence of painful motion (§4.59); or alternatively, under the 5259 code (cartilage, semilunar, removal of, symptomatic).  It was agreed that frequent locking due to dislocated semilunar cartilage was not present, and therefore a 20% rating was not justified under the 5258 code.  However, Board members concluded that, given the symptoms and signs of ACL instability in this case, dual coding was appropriate.  In deliberating a rating under the 5257 code, the Board considered the CI’s report to the NARSUM of daily use of an ACL brace and the knee giving way with activities of daily living; but also noted the objective examination findings by all examiners of ACL instability that were no more than mild.  Ultimately, the Board agreed with the implication in the VA decision that the evidence most accurately described “slight” instability under the 5257 code.  Therefore, the Board agreed that separate 10% ratings were justified under the 5259 code and under the 5257 code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 10% for symptomatic cartilage removal, coded 5259, and 10% for left knee instability, coded 5257, for a combined rating of 20% for the left 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 persistent anterior knee pain, status post ACL reconstruction condition, the Board unanimously recommends a disability rating of 10% coded 5259 and 10% coded 5257, for a combined 20%, IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Persistent Knee Instability, Status Post Anterior Cruciate Ligament Reconstruction | 5257 | 10%
Persistent Anterior Knee Pain, Status Post Cartilage Removal | 5259 | 10%
Combined | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	XXX
	Director of Operations
	Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
 COMMANDER, NAVY PERSONNEL COMMAND
	     	          		           	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 10 Jun 13 ICO X
          (c) PDBR ltr dtd 20 Jun 13 ICO X
          (d) PDBR ltr dtd 12 Jun 13 ICO X
          (e) PDBR ltr dtd 20 Jun 13 ICO X
                                        
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

	a.  Xformer USN:  Disability separation with a final disability rating of 20 percent  (increased from ten percent) effective 30 April 2002.

	b.  Sformer USN:  Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 3 December 2001.

	c.  Xformer USN: Disability retirement with assignment to the Temporary Disability Retired List with a 50 percent disability rating (in accordance with VASRD 4.129) for the period 2 February 2002 through 1 August 2002, with assignment to the Permanent Disability Retired List with a 50 percent disability rating effective 2 August 2002.

	d.  Xformer USMC: Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 15 December 2003.
	
3.  Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.

						 XX
						  Assistant General Counsel
						     (Manpower & Reserve Affairs)

PD1201645