RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXX. BRANCH OF SERVICE: marine corps

CASE NUMBER: PD0900554 SEPARATION DATE: 20040331

BOARD DATE: 20110624

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Captain (0402, Logistics) medically separated for a multiple ligament injury of the right knee, with lateral meniscus tear. The CI underwent reconstructive knee surgery in May 2003. In spite of treatment, he did not respond adequately to perform his required military duties or meet physical fitness standards. The CI was placed on limited duty (LIMDU) and underwent a Medical Evaluation Board (MEB). The right knee condition was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. The PEB found the right anterior cruciate ligament (ACL), posterior cruciate ligament (PCL), and lateral meniscus condition to be unfitting. They assigned a disability rating of 10%. One other MEB condition (right hamstring/Iliotibial band [ITB] inflexibility, with questionable contracture) was found to be category II (related to the unfitting right knee condition). The CI accepted the PEB findings, and was medically separated with a 10% disability rating.

CI CONTENTION: “The two primary reasons are: (1) At the time of evaluation there were conditions that were not considered in my overall rating; and (2) there are service connected disabilities that have arisen that required evaluation. My current medical records will reflect the medical conditions that support this request. The knee injury is not progressing as it was thought at the time of my initial evaluation, and is in fact, getting significantly worse with time. Also, in my initial evaluation, the disability did not address a shoulder injury as diagnosed by Dr. D. Furthermore, I had high blood pressure that was not addressed in the initial evaluation.”

RATING COMPARISON:

*Original VARD dated 20020403 rated 8045 at 10% for a combined 10% effective 20000302

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the significant impact that his service-incurred condition has had on his quality of life. However, the Disability Evaluation System (DES) has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Veterans Administration. Also, it is noted for the record that the Board has neither the jurisdiction nor authority to render opinions in reference to any suspected DES improprieties in the processing of this case. The Board’s role is confined to the review of all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation. It must also judge the fairness of PEB fitness adjudications based on the fitness consequences of conditions as they existed at the time of separation.

Right Knee Condition. In October 2002, this Marine sustained a multi-ligamentous injury to his right knee while deployed to Kosovo. Injuries included ACL tear, PCL tear, and injury to the postero-lateral corner (PLC). He was placed on LIMDU for eight months. The CI underwent reconstructive knee surgery on 2 May 2003, and then began rehabilitation. Post-operatively he did well. However, by October 2003 he was still unable to run without pain. It was estimated that he needed 8-12 months of additional rehabilitation before being fit for duty, so an MEB was initiated. At the MEB right knee exam on 4 November 2003, there was some tenderness noted. The knee was stable to varus/valgus stress, with a grade 1 posterior drawer and negative anterior drawer. Lachman and dial tests were negative. Also, there was some hamstring and ITB tightness. As noted above, the January 2003 Navy PEB found him unfit due to the right knee condition, and assigned a 10% disability rating.

At the September 2004 VA compensation and pension (C&P) examination, there was no evidence of fatigability or incoordination. The CI was “doing relatively well,” wearing a brace only for excessive walking or hiking. He had intermittent pain with excessive exercise, and no complaints of instability. There was no joint laxity, and McMurray’s test was negative. Two goniometric range of motion (ROM) evaluations were in evidence. These two exams are summarized in the chart below.

The Board noted that the PEB and the VA chose different coding options for the right knee condition, but this did not bear on rating. Both assigned a disability rating of 10%. The Board carefully reviewed all evidentiary information available. The chronic right knee condition was essentially non-compensable based on VASRD §4.71a ROM criteria (codes 5260-5261). However, IAW VASRD §4.40 and §4.59, a 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint. The Board then addressed the issue of joint (ligamentous) instability. Review of the treatment record shows that at both the November 2003 MEB exam and the September 2004 C&P exam, there was no clear-cut, objective evidence of significant knee instability. The only ligamentous laxity noted on exam was a grade 1 posterior drawer sign. The Board determined that this was not unfitting. Following due deliberation, the Board unanimously recommends a disability rating of 10% for the chronic right knee condition. The Board then discussed at length the various coding options for the right knee condition. Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends by majority decision (2:1 vote) that there be no change to the PEB adjudication of the unfitting right knee condition. The Board then determined that the right hamstring and ITB inflexibility were indeed related to the unfitting knee condition, and were not separately unfitting. The Board agreed with the PEB that there was not sufficient evidence to support these conditions as being independently unfitting. Therefore, the Board recommends no change to the PEB adjudication for hamstring and ITB inflexibility, as a category II condition.

Right Shoulder Injury. The CI underwent shoulder surgery in 1999. On 16 December 1999, it was noted that he had excellent results from the surgery. The CI was able to return to full unrestricted duty in 2002. The non-medical assessment (NMA) from November 2003 does not mention any restrictions due to shoulder problems. The condition was reviewed by the action officer and considered by the Board. The Board determined that the shoulder injury was not unfitting, and therefore not subject to service disability rating.

Remaining Conditions. Hypertension, sinusitis, headaches, elbow bursitis, arthritis, foot bunion, kidney stones, and several other conditions were also noted in the file. None of these conditions were clinically significant during the MEB/PEB period, none were the basis for LIMDU, and none were implicated in the NMA. They were all reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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. In the matter of the right knee condition, the Board recommends by majority decision (2:1 vote) a rating of 10%, coded 5257 IAW VASRD §4.71a, §4.59, and §4.40. The single voter for dissent (who agreed with the 10% rating, but recommended a coding change to 5299-5260) did not elect to submit a minority opinion. In the matter of the hamstring/ITB inflexibility, hypertension, right shoulder injury, sinusitis, headaches, elbow bursitis, arthritis, foot bunion, kidney stones or any other conditions eligible for consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

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 20090913, w/atchs.

Exhibit B. Service Treatment Record.

Exhibit C. Department of Veterans' Affairs Treatment Record.

Deputy Director

Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW

BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION

ICO XXXXXX, FORMER USMC, XXX XX XXXX

Ref: (a) DoDI 6040.44

(b) PDBR ltr dtd 16 Aug 11

I have reviewed the subject case pursuant to reference (a) and, for the reasons set forth in reference (b), approve the recommendation of the PDBR Mr. XXXXX’s records not be corrected to reflect a change in either his characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board.

Assistant General Counsel

(Manpower & Reserve Affairs)