RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01204
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150113
Separation Date:  20051130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Helicopter Mechanic, CH-46) medically separated for a left leg muscle injury caused by rocket shrapnel.  The 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 condition, characterized as “other open fracture of lower end of femur” and “late effects of other accidents,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the muscle injury as unfitting and rated it at 10%.  The PEB also identified two other Category II conditions: “shortening left femur, 2cm” and “open left distal femur fracture, status post (s/p) open reduction and internal fixation (ORIF) and iliac crest bone grafting – now with healed fracture.”  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 muscle injury condition is addressed below; no additional conditions are within the 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.

RATING COMPARISON:

Service IPEB – Dated 20050822 | VA - (2 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Late Effects of Injuries Related to Fracture of Lower Extremity | 5314 | 10% | Residuals, Postoperative Shrapnel Injury Left Lower Extremity | 5255-5314 | 50% | 20051007
Shortening Left Femur 2cm. | Category II | | | |
Open Left Distal Femur Fracture s/p ORIF and Iliac Crest Bone Grafting | Category II | | | |
Other x0 | Other x9 | 20051007
Combined:  10% | Combined:  80%
Derived from VA Rating Decision (VARD) dated 20060130 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The PEB adjudicated shortening left femur 2cm. and open left distal femur fracture s/p ORIF and iliac crest bone grafting as Category II conditions (“Conditions that contribute to the unfitting condition”).  The Category II conditions will be discussed under the late effects of injuries related to fracture of lower extremity Category I unfitting condition.

Late Effects of Injuries Related to Fracture of Lower Extremity Condition.  On 14 January 2005, the CI sustained a shrapnel injury to his left femur from a 122 mm rocket.  The shrapnel injury resulted in a fist sized soft tissue defect over the anterior aspect of the distal left femur with a bone fracture.  While in theater, the CI underwent emergent treatment of the wound and then he was evacuated by air to a tertiary care facility in Germany for additional care.  He was then evacuated state-side for surgical treatment.  The CI underwent several procedures for advanced wound care and ultimately underwent ORIF of the left femur on 27 January 2005.  He was discharged on 1 February 2005.  He returned 6 weeks later for bone grafting material to be placed in the 3cm bone defect to promote healing.  He healed well and presented for re-evaluation 6 weeks after the bone graft.  That evaluation revealed that the CI had been able to walk pretty well, had gone to physical therapy (PT) and had good range-of-motion (ROM).  The physical exam findings were well healed scars, excellent motion with full extension, flexion of 120 degrees (140 degrees normal), and no tenderness.  He was able to hold his knee extended against resistance without problems.  X-rays performed at this visit demonstrated a large plate in good position, bone graft in place with good callous formation and no significant ossification within the quadriceps muscle.  The examiner ordered that the CI could progress to weight bearing and low level walking; however, he could not do any running, or jumping.  Over the ensuing 2 months the CI continued PT with his final PT evaluation 4 months prior to separation.  At that evaluation he had an antalgic gait with a leg length discrepancy, decreased pain, atrophy of the lower left leg, full flexion of his hips with reduced internal rotation, and knee flexion of 103 degrees.  His left leg strength was normal and his balance was fair to good.  The MEB narrative summary exam approximately 5 months prior to separation documented that CI was able to walk without assistance but was unable to run.  The examiner documented that a sonogram confirmed a 2 cm leg length discrepancy, left shorter than the right.  There was left knee grinding when riding a bike or performing an exercise with knee flexion to 90 degrees or greater with significant quadriceps weakness.  There were physical exam findings of a gait abnormality, a palpable defect with weakness in the quadriceps musculature; and left knee ROM flexion of 120 degrees.  There was normal strength, pulses and sensation in the left lower leg.  

The VA Compensation and Pension exam approximately 2 months after separation documented that the CI could not exercise, lift heavy objects, and had problems walking up stairs.  The physical exam revealed significant scaring of the left thigh with tenderness but no instability, adherence, or keloid formation.  The examiner documented a normal gait in spite of the leg length discrepancy.  Muscle palpation demonstrated impairment of muscle tone and some signs of lower endurance and strength of 4/5 in the thigh muscle groups.  After repetitive joint function on the left side, the joint function was additionally limited by pain.  The left knee had crepitus, flexion of 110 degrees with pain which was additionally limited by pain after repetitive motion.  The left ankle had full ROM; however, there was pain after repetitive motion.  His hip ROM was normal except for an external rotation of 40 degrees (60 degrees is normal).  The CI required corrective shoes for the difference in leg length.  Lower leg sensation and pulses were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the late effects of injuries related to fracture of lower extremity condition as 5314 (Group XIV Muscle Injury) and rated it 10%.  The VA coded the residuals, post-operative shrapnel injury left lower extremity condition as 5255 (femur impairment) with 5314 and rated it 50%.  The VARD documented that they applied a “non-schedular” evaluation “…because there is involvement of muscle groups that are in the same anatomical region interfering with more than one joint (left hip, knee, and ankle).”  The Board reviewed the record for evidence related to the hip and ankle in an effort to understand the VA’s rating scheme.  The evidence documents that at the time of separation the CI’s hip had a slight decrease in internal rotation as the only impairment.  His ankle had a normal ROM with pain only after repetitive use.  His gait was described as normal in spite of the leg length discrepancy.  After discussion, Board members agree that the evidence does not support any additionally compensable impairment to the hip or ankle from the Group XIV muscle injury.  The Board agrees that VASRD code 5314 is the most appropriate code for rating the CI’s disability as applied by the PEB and VA.  In preparing the recommendation, the Board reviewed VASRD §4.56, evaluation of muscle disabilities, and noted the following entry:

“An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal.”

The record contains well documented evidence of significant left thigh muscle injury with an open, comminuted femur fracture that required ORIF and subsequent bone grafting.  Although the CI had a reasonably good recovery, he still manifested a leg discrepancy, palpable defect in the quadriceps musculature with weakness, and limited knee ROM with pain.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.56, the Board recommends a disability  rating of 40% for the late effects of injuries related to fracture of lower extremity 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 late effects of injuries related to fracture of lower extremity condition, the Board by a majority vote recommends a disability rating of 40%, coded 5314 IAW VASRD §4.73.  The single voter for dissent elected not to submit a 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
Late Effects of Injuries Related to Fracture of Lower Extremity | 5314 | 40%
COMBINED | 40%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130904, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review
MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	                          DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
         (b) PDBR ltr dtd 26 May 15 XXXXXXXXXXXXXXX
	    (c) PDBR ltr dtd 7 May 15 XXXXXXXXXXXXXXX
	    (d) PDBR ltr dtd 7 May 15 XXXXXXXXXXXXXXX

1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.
     
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.

			XXXXXXXXXXXXXXX
			Assistant General Counsel
                                       		(Manpower & Reserve Affairs)

PD-2013-01204