RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01364
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141112
SEPARATION DATE:  20040709

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty CM3/E-4 (CM3/Construction Mechanic Third Class) medically separated for a knee injury.  The condition could not be adequately rehabilitated to meet the requirements of his Rating or physical fitness standards, so he was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “left knee anterior cruciate ligament (ACL) deficiency surgically treated,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded two other conditions (left knee tibial tubercle avulsion fracture, surgically treated and left knee early degenerative changes) for Physical Evaluation Board (PEB) adjudication.  The Informal PEB adjudicated left knee ACL deficiency surgically treated as unfitting, rated at 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining left knee early degenerative changes and left knee tibial tubercle avulsion fracture, surgically treated conditions were determined to be Category II conditions.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Due to my condition, I am no longer able to do the job the military trained me to do.  I am in pain all the time, and additional surgery has been recommended.  I am also having lower back pain and issues with bending, lifting and kneeling.  Also, I am having issues with my right knee.  I am unable to stand for long periods of time, and have trouble doing normal everyday tasks.  My orothopedic [sic] surgeon advised my first surgery was incorrectly, and has recommended it be re-done.”

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 conditions are addressed below.  The contended low back and right knee conditions were not identified by the PEB; and, thus are not within the DoDI 6040.44 defined purview of the Board.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition~~s~~ 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, operating under a different set of laws.

RATING COMPARISON:

Service IPEB – Dated 200400423 | VA* – 20130924 based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Left Knee Anterior Cruciate Ligament Deficiency Surgically Treated | 5099-5003 | 10% | Residuals, Left Knee ACL Repair with Patella Tendon Allograft | 5260-5010 | 10% | STR
Left Knee Early Degenerative Changes | Cat II | | | |
Left Knee Tibial Tubercle Avulsion Fracture, Surgically Treated | Cat II | | | |
Other x 0 (Not in Scope) | Other x 1
Combined:  10% | Combined:  10%
*Derived from VA Rating Decision (VARD) dated 20130924

ANALYSIS SUMMARY:

Knee Condition.  The CI had a left knee injury after a motorcycle accident on 4 March 2002 when he fell and hyperextended the knee with pain after walking.  He underwent the first knee surgery on 2 April 2002 for removal of a left knee tibial eminence avulsion fracture fragment, and debridement of the ACL.  He had a second surgery on 7 May 2002 for ACL reconstruction and autograft.  By 9 October 2002, he had returned to full activity.  At that time, examination revealed full left knee range-of-motion (ROM) and a plus one positive Lachman’s Test for ACL instability with a fixed end point and found fit for full duty by orthopedics.  On 20 June 2003 he was seen in clinic for left knee pain with recent running, and had been on light duty on and off.  He was evaluated by orthopedic surgery on 18 August 2003 and the CI reported left knee pain around the patella with activity, without locking, no giving out and no swelling.  The physical examination found a stable knee, without anterior drawer sign, negative Lachman’s, no joint line tenderness, no patellar tenderness, no effusion, and well healed surgical scars, ROM was 0 to 125 degrees.

The narrative summary on 16 January 2004 (7 months prior to separation), noted the CI continued to have pain and buckling of the left knee.  The CI reported inability to kneel, squat, or run.  Physical examination revealed a positive Lachman’s test of four to five millimeters with a questionable end-point (positive for ACL instability) and a trace positive pivot shift test.  X-ray findings were ACL reconstruction as well as minor degenerative changes of the left knee joint.  There were no VA Compensation and Pension (C&P) exams in evidence.

The Board directed attention to its rating recommendation based on the above evidence.  The Board considered VASRD analogously codes 5099–5003 (degenerative arthritis), used by the PEB for a 10% rating.  The Board did not find compensable ROM for the knee and no X-ray evidence of involvement of two or more major joints or occasional incapacitating exacerbations for a higher rating under this code.  The Board considered codes 5260 (leg, limitation of flexion) and 5010 (arthritis, due to trauma, substantiated by X-ray findings) used by the VA for a 10% rating, 9 years after separation, without the benefit of a C&P examination due to no-show.  The VASRD instructs to rate 5010 (arthritis due to trauma) as 5003 (degenerative arthritis) already discussed above.  The Board did not find evidence of left knee locking pain, effusion of the joint, recurrent subluxation or lateral instability, for alternate or additional coding options providing a higher rating.  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 left knee condition.

BOARD FINDINGS:  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 left 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXX
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 8 Apr 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their 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:

- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXX
	     				  Assistant General Counsel
		  (Manpower & Reserve Affairs)

PD-2013-01364