RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01613
BRANCH OF SERVICE:  Army	BOARD DATE:  20141017
SEPARATION DATE:  20040729

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (21B/Combat Engineer Basic Trainee) medically separated for a left leg fracture.  The left leg condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The left leg condition, characterized as “left leg pain, status post (s/p) open reduction and intramedullary nailing of a tibial shaft fracture along with percutaneous screw fixation of an intra-articular tibial plafond fracture” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “compound fracture left lower extremity s/p intramedullary nailing of the tibia and screw fixation of an intra-articular tibial plafond fracture” as unfitting, rated 10%,  with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “In function of physical and mobility limitations coupled with the progressive chronic pain and impairment thereof associated with the condition the Veteran believes that the condition warranties a higher rating. While in service the Veteran has had more than one large surgery with the implant with a substantial amount of hardware (large rod, screws) into his left leg.  Ever since the Veteran has had other conditions linked with the injury.  Please see attached documents.”  Along with the application (DD Form 294), the CI attached additional pages (29 total) which were reviewed by the Board and considered in its recommendation.

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 leg 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 Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040705	VA - (5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Compound Fracture LLE s/p Intramedullary Nailing of the Tibia and Screw Fixation of an intra-articula-tibial plafond Fracture	5099-5003	10%	Residual of Left Leg Fracture w/Hardware and Pain	5299-5262	30%	20050103	
Other x 0 (Not in Scope)	Other x 0		
Rating:  10%	Rating:  30%	
Derived from VA Rating Decision (VARD) dated 20050125 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Compound fracture of left leg.  In February 2004, the CI slipped on some ice and fractured his left tibia and left fibula. He underwent an open reduction and internal fixation.  Subsequently, further surgeries were also required.  Over time, the fracture sites showed evidence of satisfactory healing.  However, it was determined that he would not recover sufficiently to permit military training and an MEB was initiated.  The MEB narrative summary was dated 10 June 2004.  At that time, the CI could not do any running or jumping.  He also could not stand more than 15 minutes or walk distances greater than one mile.  On physical examination, the left lower extremity was neurovascularly intact with well-healed incisions.  There was minimal tenderness to palpation over the fracture site.  Range-of-motion (ROM) of the knee and ankle was measured and is summarized in the charts below.  The CI was separated from service in July 2004.  Five months later, he had a VA Compensation and Pension exam.  He complained of pain around the left knee and pain in the left ankle.  He was able to stand up to one hour and walk up to three miles.  He was not able to run, jump or play soccer.  ROM of the knee and ankle was measured and is summarized in the charts below.

Left Knee ROM
(Degrees)	
MEB ~ 1½ mos. Pre-Sep
	
VA C&P ~ 5 mos. Post-Sep
	
Flexion (140 Normal)	130	112	
Extension (0 Normal)	0	0	

Left Ankle ROM
(Degrees)	
MEB ~ 1½ mos. Pre-Sep
	
VA C&P ~ 5 mos. Post-Sep
	
Dorsiflexion (20 Normal)	0	10	
Plantar Flexion (45)	35	40	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB chose diagnostic code 5099-5003 (analogous to degenerative arthritis) and assigned a disability rating of 10%.  The VA chose diagnostic code 5299-5262 (analogous to tibia and fibula impairment) and assigned a disability rating of 30% (marked disability).  The Board deliberated at length with regard to the proper disposition of this case and determined that at the time of separation, the CI’s level of disability was best described as “moderate.”  Since he was unable to run or jump, the Board determined that his disability was above the level of “slight.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and VASRD §4.7 (higher of two evaluations), the Board unanimously recommends a disability rating of 20% for the left leg condition.  It is appropriately coded 5299-5262 and meets criteria for the 20% rating level (moderate disability).

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 leg condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5262 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior disability determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Compound fracture of left lower extremity	5299-5262	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130920, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20150006985 (PD201301613)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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			     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA