RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02188
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20140821
SEPARATION DATE:  20081030

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCPL/E-3 (5979/Tactical Air Operations Module/Air Defense Technician) medically separated for a left knee condition.  The left 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 left knee condition, characterized as “tear of lateral cartilage or meniscus of knee,” “chondromalacia” and “derangement of meniscus, not elsewhere classified,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “posterior horn lateral meniscus tear, left knee” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  Three conditions were determined to be Category II conditions (diffuse Grade 3 chondromalacia (of the) lateral compartment, discoid like lateral meniscus and Grade 2 chondromalacia of the trochlea, surgically treated).  The CI made no appeals and was medically separated.

CI CONTENTION:  “MEBD Diagnosis 1. Low Back Musculotendinous strain; 2. Chronic sprain, left ankle; 3. Asthma; 4. Posttraumatic Stress Disorder (PTSD); 5. Scars were not rated in the PEB.  However, the VA rated these disabilities for a total of 60%.  These ratings should have been included in the PEB: 1. Low Back Musculotendinous strain 10%; 2. Chronic sprain, left ankle 0%; 3. Asthma 0%; 4. PTSD 30%; 5. Left Knee 30%; 6. 10% for scars.”

His complete submission is at attachment A.

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 left knee condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The requested back, left ankle, asthma, PTSD and scars were not identified by the PEB and thus are not within 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.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus 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 ratable severity at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20080818	VA - (1 Mo Pre and 9 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posterior Horn LMT, Left Knee	5299-5003	10%	Residuals, Left Knee LMT	5260	10%*	2008092920090727	
Diffuse Grade 3 Chondromalacia	CAT II					
Diskoid Like Lateral Meniscus	CAT II					
Grade 2 Chondromalacia …	CAT II					
Other x 0 (Not is Scope)	Other x 5	
Rating:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20081209 (most proximate to date of separation [DOS]).  *Knee increased to 30% 20090501, had second surgery post separation.

ANALYSIS SUMMARY: 

Left Knee Condition.  The CI injured his left knee in October 2006 jumping off of a tactical vehicle.  He reported pain and subjective instability afterwards.  Conservative management was unsuccessful and he was referred to orthopedics and found to have an internal derangement of the left knee at the 17 September 2007 appointment.  A magnetic resonance imaging showed evidence of a lateral meniscus tear (a meniscus is one of the cartilage cushions inside the knee between the bones of the thigh and knee).  On 8 November 2007, he underwent arthroscopic debridement of the lateral meniscus and repair of the knee.  Post-operatively, he continued to have knee pain and was unable to run.  He was then entered into the Disability Evaluation System process.  The narrative summary was dated 23 April 2008, 6 months prior to separation, and dictated by an orthopedic surgeon.  The CI had a mild effusion, slightly reduced flexion of the knee, but no instability or signs of meniscal irritation.  Degenerative changes were present on X-rays.  At the MEB examination a week later, the CI reported continued pain of the knee.  The MEB physical examiner, who was apparently not an orthopedic surgeon, noted signs of meniscal irritation and painful flexion past 90 degrees, but also noted no instability.  At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported, that his knee popped a lot.  His posture and gait were normal.  He was able to hop on his leg and do deep knee bends, although these were painful.  The range-of-motion (ROM) was normal.  The knee was stable and signs of meniscal irritation absent.  After separation, the CI had a second surgery of his left knee in March 2009.  No records are in evidence.  A second C&P for the left knee was accomplished on 27 July 2009, 9 months after separation and 4 months after the second procedure.  He was noted to have an antalgic gait (one which guards against pain) and an effusion in the knee.  The meniscus was noted to be absent; the knee was stable though.  The goniometric 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.
DOS 20081030
Left Knee ROM
(Degrees)	MEB ~ 6 Mo. Pre-Sep
(20080423) p.19	VA C&P Ortho ~ 1 Mo. Pre-Sep	VA C&P ~ 9 Mo. Post-Sep	
Flexion (140 Normal)	130	140	95	
Extension (0 Normal)	0	0	-10	
Comment	Mild effusion; left thigh atrophy; neg lachman and posterior drawer; no valgus or varus instability; crepitus noted	Occasional use of an assistive device.	Painful motion noted; Four months post-operative from post separation surgery.	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The VA and PEB both rated the knee at 10% based on examinations prior to separation, using the codes 5099-5003 (analogous to degenerative arthritis) and 5260 (limitation in flexion), respectively.  Subsequently, the VA raised the rating for the left knee to 30%, after a temporary 100% rating for post-operative recovery, effective on 1 May 2009.  The rating officer noted that there was an effusion and a positive McMurray test which was determined to support a 30% rating for instability.  The action officer observed that the examiner actually noted that there was not instability and that an effusion is not uncommon in the post-operative recovery period.  A positive McMurray is indicative of meniscal irritation, not an unstable knee and was consistent with the history of meniscal surgery.  There was increased limitation in the knee ROM in flexion and extension, but no additional rating is supported for the limitation in extension.  The Board also noted that the VA rated the CI for post-operative scars.  There is no evidence to support a finding that the scar was separately duty limiting (such as an inability to wear military uniforms) to justify a determination that the scar was separately unfitting.  Accordingly, no separate rating is warranted.  The Board considered that the second C&P was accomplished in the post-operative recovery period for surgery accomplished post-separation, reducing its probative value.  As noted, the two examinations prior to the second surgery and proximate to separation support no more than a 10% rating.  The role of the PEB is to determine the appropriate rating at the time of separation and that of the VA to consider rating changes due to complications or changes in the condition after separation.  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:  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 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 20131101, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
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 26 Mar 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:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC

						  XXXXXXXXXXXXXXX
	     				  Assistant General Counsel
		  (Manpower & Reserve Affairs)