Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE NUMBER:  PD1201746
BRANCH OF SERVICE:  Army	BOARD DATE:  20130606
Separation Date:  20011026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve PV2/E-2 (63J10/Chemical Equipment Repairer) medically separated for a fractured leg and weak left ankle.  The CI was involved in a serious motor vehicle accident (MVA) and he suffered extensive injury to his left lower extremity (LLE) and right ankle.  Despite four orthopedic surgeries, bracing, in-patient rehabilitation therapy, occupational therapy (OT), and medications, the CI failed to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U4/L4 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded the left talus dislocation fracture (FX), left humeral midshaft FX, Grade 3-C open tibial FX, status post (s/p) open reduction and internal fixation (ORIF) of tibial FX, s/p closed reduction of left humeral fracture, and s/p closed reduction of left talus FX all as medically unacceptable IAW AR 40-501 to the Physical Evaluation Board (PEB).  However, the left talus dislocation FX and s/p closed reduction of left talus diagnoses were incorrectly identified as a left talus dislocation FX and closed repair when, in fact, the injury was a right ankle talus dislocation (no FX) that was reduced.  The PEB adjudicated FX leg with residual weakness of the left ankle requiring an ankle-foot orthotic (AFO) and a cane for ambulation as unfitting (incorporating the left talus dislocation FX, Grade 3-C open tibial FX, s/p ORIF of tibial FX and s/p closed reduction of left talus FX diagnoses) rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The left humeral midshaft fracture and s/p closed reduction of left humeral fracture conditions were adjudicated as not unfitting and therefore were not rated.  The CI made no appeals, and he was medically separated.

CI CONTENTION:  “Residuals postoperative compound fracture of left tibia-fibula was rated 10%, they didn't look at my other medical conditions such as my scars, my mental state, my serve [sic] nerve damage in left leg caused by the tibia-fibula fracture.  My right ankle have little movement in it.  I had all of these conditions when I was discharge from the army but they only rated me for the tibia-fibula fracture.”

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 requested bundled right talus dislocation s/p closed reduction condition is addressed below in addition to a review of the rating for the unfitting Grade 3-C open tibial fracture s/p ORIF condition.  The requested nerve damage condition is not within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention either 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 Military Records.

RATING COMPARISON:

Service IPEB – Dated 20011004 | VA - (6 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Fracture Leg  with Residual Weakness of the Left Ankle requiring an Ankle Foot Orthotic and a Cane for Ambulation | 5271 | 10% | Residuals, Post-op Compound Fracture of Left Tibia-Fibula, with Nerve Damage | 5262 | 10% | 20020508
| | | Left Peroneal Nerve Injury | 8521 | 20%* | 20020508 20050224
Right Talar Dislocation S/P Closed Reduction Incorrectly Labeled as Left Talus Dislocation Fracture and Status Post Closed Reduction of Left Talus Fracture and Bundled with Left Tibia Fracture Condition Above | Residuals of Right Talar Dislocation | 5299-5271 | 10%* | 20020508
Left Humeral Midshaft Fracture | Not Unfitting |
S/P Closed  Reduction of Left Humeral Fracture | Not Unfitting |
↓No Additional MEB/PEB Entries↓ | Other x 3 | 20020508
Combined:  10% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20021129 (most proximate to date of separation [DOS]).   
*DRO decision 20041203 granted 20% entitlement for residuals of left peroneal nerve injury (based on original C&P 20020508 and later C&P 20050224) and 10% for residuals of right talar dislocation (based on original C&P 20020508 only) effective the DOS 20011027. 

ANALYSIS SUMMARY:  The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation.  The Board utilizes service and VA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration of post-separation evidence.  Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Left Tibial Fracture with Residual Weakness of the Left Ankle and Right Talar Dislocation Condition.  The PEB rated left Grade 3-C open tibial fracture s/p ORIF and right ankle talus dislocation s/p closed reduction under the single 5271 code for ankle, limited motion of.  In accordance with DoDI 6040.44, the Board must apply only VASRD guidance to its recommendation.  The Board must therefore apply separate codes and ratings in its recommendations, if compensable ratings for each joint are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases; however, it must satisfy the requirement that each unbundled condition was reasonably justified as unfitting in and of itself and adhere to the caveat that the final recommendation may not produce a lower combined rating than that of the PEB.

Left Tibial Fracture with Residual Weakness of the Left Ankle requiring an AFO and a Cane for Ambulation Condition.  The Board first considered if the left tibial FX condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as independently unfitting.  The service treatment records (STRs) document significant sequelae resulting from the left tibial FX with ORIF that significantly limited his activities.  At the time of the MEB narrative summary (NARSUM), the CI required a cane and a hinged ankle brace for normal ambulation due to weakness of left ankle dorsiflexion and he was unable to participate in any sports or aggressive activities.  He could not run, bicycle, swim, march, jump, or engage in lower body weight training.  Therefore, it is reasonably justified that the CI be found unfit for continued military service in his MOS due to his left tibial FX condition with resulting left ankle impairment.  All members agreed that the left tibial FX condition, as an isolated condition, would have rendered the CI incapable of continued service within his MOS, and accordingly merits a service rating.

There were evaluations in evidence, with documentation of additional ratable criteria, that the Board weighed in arriving at its rating recommendation as summarized in the chart below. 

Ankle ROM | MEB NARSUM ~1.70 Mo. Pre-Sep | VA C&P ~5.70 Mos. Post-Sep
| Left | Right | Left | Right
Dorsiflexion (0-20⁰) | Not measured | Not measured
Plantar Flexion (0-45⁰) | | 30° with pain | 40°
Comment | Left Ankle: ambulates with hinged AFO; 3-4/5 dorsiflexion; 5/5 plantar flexion; no draining wounds | Left Ankle:  pain and tenderness with motion; able to weight bear on the left without a brace | Right Ankle: pain, soreness, tenderness; ankle joint residual swelling around talonavicular and ankle joints

Left Leg:  fascial defects along anterior mid tibial area approximate to sites of primary and delayed closures of tibial fx; NO tenderness to palpation (TTP); “able to ambulate with cane”, AFO hinged brace

Left Knee:   Flexion 135° (nml 140)

Left Leg: wears leg brace-but not at exam; no cane; limp; difficulty raising on toes and heels partial squatting due to weakness of left leg; scarring; tenderness, soreness pain on palpation

Left Knee:   Flexion 130° (nml 140); pain, stiffness, soreness

§4.71a Rating | 20% | No exam | 20% | XX%

As a result of injuries sustained in the MVA, in December 2000, the CI was admitted to the trauma service with a left Grade 3 open tibial mid distal FX.  He subsequently underwent an incision and draining (I&D) of the left tibia with intramedullary nailing.  Three days later, the CI underwent a second I&D of the left tibia with a delayed primary closure of the anteromedial wound.  In January 2001, the CI underwent a third surgery for debridement of skin, subcutaneous tissue and muscle from LLE wound, and split thickness graft to LLE wound.  The CI was discharged from the hospital and admitted to acute rehabilitation for a 10 day stay which included both extensive physical and OT.  During this rehabilitation treatment, the CI was fitted for a left foot dynamics dorsiflexion splint and was diagnosed with left peroneal neuropraxia with foot drop.  In May 2001, the CI underwent a fourth surgery that involved revision nailing, exchanging the nailing of his left tibial non-union.  The CI was followed by a civilian orthopedist from January to June 2001.  The MEB NARSUM examination approximately a month prior to separation indicated that the CI’s initial neuropraxia, demonstrated on an electromyelogram performed by a civilian physician, and complete foot drop had resolved with a 4/5 Grade muscular tone in the anterior tibialis muscle and response to dorsiflexion.  The examiner noted that the CI continued to require a hinged AFO with a cane for walking assistance and could only participate in desk type and limited active type duties.  The examiner further opined that the CI’s duties would be most likely limited by the left tibial pain and decreased strength in his left ankle.  The MEB NARSUM physical exam findings are summarized in the chart above.  The CI was given a permanent U4/L4 profile for multiple upper and lower extremity fractures with restrictions of lifting to tolerance.  The VA Compensation and Pension (C&P) examination performed approximately 6 months after separation indicated that the CI still had some pain, tenderness, and limited endurance in his left leg and that he still wore a left leg brace although he did not wear it to the exam nor use his cane at that time.  The C&P exam physical findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the FX leg with residual weakness of the left ankle requiring an (AFO) and a cane for ambulation condition as 5271 (ankle, limited motion of: moderate) rated at 10%.  The VA coded the residuals, post-op compound FX of left tibia-fibula, with nerve damage condition as 5262 (tibia and fibula, impairment of: with slight knee or ankle disability) rated at 10%.  The Board adjudged that the MEB examination was closer to separation and therefore had the higher probative value.  At the time of the MEB NARSUM, the examiner documented that the CI was wearing an AFO because he had limited left ankle dorsiflexion (3-4/5) which caused a foot drop.  He required the use of a cane for ambulation.  There was further documentation by the examiner that the CI would be most likely limited by the left tibial pain and decreased strength in his left ankle.  The C&P examiner noted that the CI still had a limping gait, limited left ankle plantar flexion (30 degrees), soreness, tenderness, ankle joint residual swelling; and difficulty raising onto toes and heels; however, the CI did not wear his AFO brace to the exam.  The Board considered the criteria under both 5271 with moderate versus marked limitation of ankle motion and 5262 tibia and fibula, impairment of with slight ankle disability versus moderate ankle disability.  The Board acknowledges that this decision can be subjective; however, there is clear evidence that supports ankle disability greater than slight--the requirement of an AFO brace, a cane, and limited ankle dorsiflexion.  This evidence supports a determination of moderate disability.  After due deliberation in consideration of all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board concluded that left tibial FX with residual weakness of the left ankle requiring an AFO and a cane for ambulation condition was separately unfitting and recommends a disability rating of 20%, coded 5262 IAW VASRD §4.71a.

Right Talus Dislocation Condition.  The Board next considered if the right talus dislocation condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as independently unfitting.  The STRs document a right talus dislocation at the time of the initial injury with obvious deformity of skin tenting over the talar head.  X-rays documented a complete talar lateral dislocation from both the talar calcaneal and talar tibial joints.  No pulse was palpated before or immediately after a closed reduction was accomplished; however, pulses were palpable on the left foot.  Closed reduction was accomplished in the operating room during the ORIF for the left tibial FX, the reduction was verified by fluoroscopy, and a posterior splint was applied.  All extremity pulses were normal on examination 10 days after the reduction.  No treatment records are available from June 2001 through the date of separation in October 2001.  The MEB NARSUM noted the right talus had “shown excellent healing without signs and symptoms of avascular necrosis.”  The NARSUM did not include an examination of the right ankle but did note the CI was able to bear full weight bilaterally; however, a cane was required for normal ambulation.  The permanent profile was L4 but it is not possible to determine which restrictions were due to either the left or the right lower extremity.  The initial C&P examination approximately 5 months after separation noted continued pain and occasional swelling in the right ankle and decreased plantar flexion of the right ankle with pain, soreness, and tenderness as well as some residual swelling around the talonavicular and ankle joint on the right.  Although the VA initially did not address the right ankle, a later decision to service-connect the condition and assign a 10% disability rating was based on this original C&P exam alone.

Therefore, it is reasonably justified that the CI be found unfit for continued military service in his MOS due to his right talus dislocation condition.  All members agreed that the right talus dislocation, as an isolated condition, would have rendered the CI incapable of continued service within his MOS and accordingly it merits a separate rating.  The MEB NARSUM did not include an examination of the right ankle and the only examination available for the Board to review is the C&P examination completed approximately 5 months after separation.  This examination documented continued symptoms of pain and occasional swelling of the right ankle.  The physical examination findings are noted in the chart above and these include decreased plantar flexion and residual swelling of the right ankle.  After due deliberation in consideration of all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59 (painful motion), the Board concluded that right talus dislocation was separately unfitting and recommends a disability rating of 10%, coded 5299-5271 IAW VASRD §4.71a.
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 bundled left tibial FX with residual weakness of the left ankle requiring an AFO and a cane for ambulation condition, the Board unanimously agrees that it was separately unfitting and unanimously recommends a disability rating of 20%, coded 5262 IAW VASRD §4.71a.  In the matter of the bundled right talus dislocation condition, the Board unanimously agrees that it was separately unfitting and, by a vote of 2:1, recommends a disability rating of 10%, coded 5299-5271 IAW VASRD §4.71a.  The single voter for dissent (who recommended rating 5299-5271 at 0%) submitted the addended minority opinion.  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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Left Tibial Fracture with Residual Weakness of the Left Ankle | 5262 | 20%
Right Talus Dislocation | 5299-5271 | 10%
COMBINED | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120827, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

MINORITY OPINION:

The CI was on leave from training when he was involved in a motor vehicle accident, injuring his left leg/ankle, along with his right ankle.  The MEB incorrectly documented his right ankle injury (a talus dislocation and closed reduction) as the left ankle.  Further complicating the situation was the PEBs continuation of identifying the wrong body part in its adjudication process by bundling the left leg/ankle and left ankle injuries.  The Board identified the situation, and unbundled the left leg/ankle and right ankle in its adjudication process.  The Board unanimously agreed that the left leg/ankle and the right ankle were unfitting.  Further, it unanimously agreed that the left leg/ankle should be rated at 20%.  However, the majority recommended a 10% rating for the right ankle with the minority voter recommending 0% for the right ankle.

Rating the right ankle, while determined to be unfitting, should be rated at 0%.  The only comments in the NARSUM about the right ankle are, “the right talus has shown excellent healing without signs and symptoms of avascular necrosis,” and “the patient is able to bear full weight bilaterally.”  Additionally, there were no treatment records available from June 2001 to the date of separation, October 2001.  A C&P exam conducted approximately 6 months after separation indicated the right ankle had 40 degrees of plantar flexion, some pain, soreness and tenderness, and a little bit of residual swelling.

While the dissenting voter agrees that the right ankle is unfitting, that label is marginal at best.  The VA initially rated the right ankle at 0%.  However, based on a decision review officer decision in January 2004, 3 years after separation, and using the original VA exam, increased the rating to 10%.  Given the paucity of information about the right ankle, and the fact that it was the left leg/ankle that sustained the serious injury, the dissenting voter feels there is not enough evidence to make a solid recommendation for 10%.

I respectfully submit that the Secretary consider a minority recommendation that the permanent rating for the left leg/ankle be increased to 20%, and the right talus dislocation be rated at 0%, for a total of 20%.

RECOMMENDATION: The minority voter, recommends that there be a recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION | VASRD CODE | RATING
Left Tibial Fracture w/Residual Weakness of the Left Ankle | 5262 | 20%
Right Talus Dislocation | 5299-5271 | 0%
COMBINED | 20%

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB),

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130018166 (PD201201746)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201746