RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: marine corps

CASE NUMBER: PD1100994 SEPARATION DATE: 20051231

BOARD DATE: 20120612

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (0241/Imagery Analyst), medically separated for persistent left knee pain following anterior cruciate ligament (ACL) reconstruction. He initially injured his left knee playing soccer in February, 2004 and subsequently underwent an ACL repair in May 2004; however, he developed a post-operative wound infection that required additional surgery and wound management. His tibial-area infection eventually healed and he resumed physical therapy. Despite appropriate treatment, his pain symptoms persisted and he was unable to respond adequately to therapy, perform within his Military Occupational Specialty (MOS) or meet physical fitness standards. He was placed on a second period of limited duty and underwent a Medical Evaluation Board (MEB). Pain in joint, lower leg was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. No other conditions were forwarded on the MEB submission. The PEB adjudicated the persistent pain following ACL reconstruction condition as unfitting, rated 10% with application of SECNAVINST 1850.4E and the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION: “My rating for my knee should be changed due to the severity of the condition. After I tore my ACL, I received a severe staff infection which halted all attempts for physical rehabilitation. Normal medications did not combat the infection so I had to receive a PIC line that pumped medication through my vein and into my heart. I had to self administer the medications multiple times a day while remaining on bed rest. Once the infection subsided, my doctor had to remove any other signs of infection and damaged tissue. In order to heal the wound, I had to wear a wound-vac with a tube running from the wound to a canister that I wore on my hip. During this time period I could not continue physical rehabilitation, perform any PT, or qualify with my weapon. I still submitted a package for GySgt where I was passed over. I continued to perform my duties to the best of my abilities with the hopes of meeting the physical standards set by the Marine Corps. When I was placed on the medical board, I realized my 12 years of service was gone with no hopes of completing an honorable 20 years. After my discharge, scar tissue formed in my knee which caused me to receive another surgery by a civilian doctor. I still have issues with my knee today. Knowing that I had eight short years until I received full retirement devastated me. With this new opportunity to possibly receive medical retirement, I am respectfully requesting that the PDBR review my disability rating findings for fairness and accuracy.”

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. 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 (BCNR).

RATING COMPARISON:

*Migraine, 8100 increase to 30% effective 20110712 (combined 50%)

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-aggravated condition continues to burden him. It is a fact, however, that 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. This role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA 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. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Left Knee Condition. There were three goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation.

At the MEB exam, the CI reported persistent left knee pain and weakness with difficulty walking. Evaluations including magnetic resonance imagin (MRI), bone scan and additional specialty consultation could not find an obvious cause for his medial-sided knee pain. Specialty consultation and exam prior to the narrative summary (NARSUM) indicated abnormal gait, 4+/5 weakness, trace Lachman, crepitus, and ROM of 0-130⁰ (0-140⁰ normal). MRI summary noted a small effusion, bone bruising and intrasubstance ligament injury without clear evidence of a tear. The MEB physical exam noted tenderness, limited ROM as charted above, with significant atrophy of the left quadriceps compared to the right (the examiner noted a very muscular individual). Lachman’s testing was intermediate with 1+ and a good endpoint. Crepitus was noted at the MEB exam with decreased sensation of the lateral leg. There was no instability noted on that exam.

At the pre-separation VA Compensation and Pension (C&P) exam, the CI reported persistent pain and 3 days of incapacitation over the last year. Difficulty with walking and standing were attributed to a foot condition. Exam indicated normal gait with pain-limited ROMs charted above, crepitus, and a +Drawer (number level and endpoint not specified). Records indicate the CI had a left knee arthrospopic surgery approximately 28 months (performed on 29 April 2008) after separation with removal of a 1-cm loose body, resection of adhesions, and trochlear chondroplasty.

The Board directs attention to its rating recommendation based on the above evidence. There was no evidence of locking, give-away, meniscal injury, or significant instability. Pain-limited ROM was consistently demonstrated with crepitus and abnormal joint imaging. All exams proximate to separation indicated pain-limited ROM compensable at no greater than the 10% level. PEB coding of 5299-5003 (analogous to arthritis) and VA coding of 5260-5010 for leg limitation of flexion coded as arthritis due to trauma both used the criteria from 5003 for pain-limited ROM and neither coding is predominate.

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.

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 recharacterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20111014, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

Director of Operations

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 2 Jul 12

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

XXXXXXX, former USN

XXXXXXX, former USMC

XXXXXXX, former USMC

XXXXXXX, former USN

XXXXXXX, former USN

XXXXXXX, former USMC

XXXXXXX, former USN

XXXXXXXXXX

Assistant General Counsel

(Manpower & Reserve Affairs)