RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-01749
BRANCH OF SERVICE:  Army	BOARD DATE:  20140917
SEPARATION DATE:  20030616

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (77F/Petroleum Supply Specialist) medically separated for a left lower extremity (LLE) condition which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “left femur fracture” and “left clavicle fracture” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “multiple dental fractures and chips” and “multiple superficial lacerations over much of the body” to the PEB for consideration.  The PEB adjudicated “chronic pain left lower extremity, status post intramedullary nailing of midshaft fracture” as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Consider all conditions found unfitting and not unfitting by the physical evaluation board.”

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 ratings for the unfitting LLE condition and the contended conditions adjudicated as not unfitting (noted above), are addressed below.  With regard to the latter, the Board emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.  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 20030325	VA (4.5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain LLE 	5099-5003	10%	S/P Fractured Left Femur	5299-5255	100%*	STR*	
Left Clavicle Fracture	Not Unfitting	Residuals, Left Clavicle Fracture	5203	10%	20031028	
Multiple Dental Fractures	Not Unfitting	Dental Decisions: Teeth Injured by Trauma: #8,#9,#10	20031103	
Multiple Superficial Lacerations	Not Unfitting	Facial Scar	7800-7804	10%	20031028	
		Multiple Scars	7804	0%	20031028	
Other x 0 (not in scope)	Other x 0	20031028	
Combined:  10%	Combined:  100%*	
Derived from VA Rating Decision (VARD) dated 20030625 (most proximate to date of separation [DOS]).
* Original VARD deferred ratings for all disabilities with the exception of the left femur rating, which was awarded a pre- stabilization rating of 100% effective 20030617 derived from Service Treatment Record (STR).  VARD 20050628 decreased DC 5299-5255 to 20% effective 20050901, based on examination of 20050202 (20 months post-separation).

ANALYSIS SUMMARY:

Left Lower Extremity Condition.  The CI suffered a service-connected injury (significant trauma, vehicle vs. pedestrian) in November 2002, 5 months after service entry and 8 months prior to separation.  His initial care was in a civilian facility.  He suffered a left femur fracture (mid-shaft, displaced) which required surgical intervention (medullary rod placement with intraoperative confirmation of anatomical reduction).  He additionally suffered a significant open injury to the left knee requiring debridement.  The discharge note (11 days post-op) documented the absence of wound complications, weight-bearing with the use of a knee mobilizer, and an observation that the left quadriceps was “noticeably weaker” than the right.  There are only two sparse entries in the available service treatment record (STR) from a military facility in the interim between hospital discharge and the narrative summary (NARSUM) and neither is significantly probative.  The NARSUM, dictated on 14 January 2003, 10 weeks after the injury and 5 months prior to separation states, “At the present time, he has just been weaned off a brace ... able to walk slowly unaided.”  The physical exam stated, “His range of motion [ROM] and strength in affected left lower extremity are markedly limited  ... obvious wasting of the quadriceps.”  It did provide a ROM measurement of 90 degrees flexion (normal 140 degrees) for the left knee and stated that passive ROM of the left hip was normal.  The examiner’s “current status and prognosis” is excerpted below.
The patient is currently completely disabled for military duties.  He is barely able to walk.  The prognosis for full recovery here remains guarded; however, it is anticipated that within one to two years, he might be able to resume the normal pre-injury level of activity at which point he could reenter military service if he desires following appropriate clearance.  Also he has slight pain at all times Iocated primarily in the left thigh and knee and also in the area of the left clavicle.
The commander’s performance statement lauded the CI’s performance in a collateral assignment while physically unable to perform his primary MOS and recommended retention and reclassification.  The administrative record is silent regarding service consideration or the CI’s position with respect to that option.  There is no clinical evidence from the interval between the NARSUM and separation.  There was no directed VA examination addressing the orthopedic status of the LLE injury proximate to separation.  The VARD assigning the initial 100% rating stated, “We assigned a temporary 100% evaluation because the evidence in your medical record suggests you have serious residual medical problems relating to your accident which are not completely healed and will have severe impact on your ability to maintain gainful employment immediately after service.”  The first VA Compensation and Pension (C&P) examination for the LLE injury was conducted in February 2005 (20 months after separation), and documented “Ambulates with mild guardedness, without assistive devices.”  Limitations were “climbing stairs, prolonged sitting/standing, prolonged walking more than ‘5 minutes’.”  The CI was in school, had been unable to return to previous employment (service industry), and stated that future employment “would have to be a sit-down job.”  X-rays confirmed satisfactory healing, hardware placement, and alignment.  The VARD following this evaluation lowered the temporary 100% rating to 20%.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was supported by the USAPDA pain policy, but circumvents VASRD §4.7 (higher of two evaluations) which is relevant to this case.  The VA ratings (temporary 100% and eventual 20%) were under the analogous code 5299-5255 (femur, impairment of) and, members agreed that this code is best aligned with both the clinical pathology and rated disability evidenced in this case.  Neither a 5003 based rating nor a single joint rating available under VASRD §4.71a adequately captures the disability and dual ratings of any nature would not comply with VASRD §4.14 (avoidance of pyramiding).  Code 5255 offers analogous ratings aligned with “knee or hip disability” (knee was prominent impairment in this case) of 10% for “slight” disability, 20% for “moderate,” and 30% for “marked.”  Members deliberated at length the issue in this case that the CI was separated prior to full recovery, and whether the Board’s recommendation should logically reflect the disability in evidence after post-separation recovery; or, if the severity in evidence at separation was more binding.  Members ultimately agreed that, since a period on the Temporary Disability Retired List was not effectuated by the Service, the Board must fairly apply the military Disability Evaluation System standard of rating based on the evidence probative to the administratively final date of separation.  Having so decided, members turned to the fairest rating recommendation under 5299-5255 (as elaborated above) based on the disability in evidence at separation.  Given the NARSUM evidence (corroborated by the STR) that the CI was still significantly limited in ambulation and basic functional activities, members agreed that the fairest characterization was “marked” disability under 5255 criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the left leg condition under code 5299-5255.

Contended Left Clavicle Fracture (Subsuming Consequent Shoulder Impairment).  This condition was a consequence of the same trauma as for the femur fracture.  The only evidence from the civilian hospital is acknowledgement of a left (non-dominant) clavicle fracture in an orthopedic progress note, without further elaboration.  The fracture clearly was uncomplicated without surgical indications.  There are no STR outpatient entries which address this condition.  The NARSUM documents an X-ray report of the clavicular fracture (middle third) and describes “palpable thickening” of the left clavicle on exam.  There is no description of any left upper extremity (LUE) limitation in the NARSUM and no shoulder exam.  The MEB’s DA Form 3947 submissions indicate that the LUE condition was judged to be medically unacceptable; but, the condition was not profiled (U1 permanent profile); and, the commander’s statement references only headaches and the LLE condition as contributing to limitations.  There was a VA C&P evaluation addressing the LUE condition performed 4 months after separation.  It described a pain-free course up until “the last few weeks” prior to the exam, with recent complaints of shoulder pain and weakness.  The physical examination was remarkable only for painful motion of the left shoulder (the basis for the VA 10% rating), with near normal ROM measurements.  The VA examiner stated specifically that the CI does not appear to be limited as far as his occupation from his left clavicle or left shoulder conditions at this point in time.”

The Board’s main charge is to assess the fairness of the PEB’s determination that the condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Although the condition was judged to fail retention standards by the MEB examiner, the NARSUM does not provide support for that conclusion; and, it was not profiled or implicated in the commander’s statement.  There was no performance based evidence from the record that there was any LUE impairment which significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the left clavicle fracture.

Contended Multiple Dental Fractures and Multiple Superficial Lacerations.  The NARSUM noted repaired dental work on exam, and the MEB’s DD Form 2808 report of medical history recorded an acceptable dental classification.  There is no evidence from the service or VA records that any of the lacerations were serious or functionally significant.  Both conditions were judged to be medically acceptable, and were not profiled or implicated by the commander.  Both were reviewed considered by all Board members.  There was no performance based evidence that either of them significantly interfered with satisfactory duty performance.  The Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the dental fractures or multiple superficial lacerations.

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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the left lower extremity condition was operant in this case and it was adjudicated independently of that policy by the Board.  In the matter of the LLE condition (surgical femur fracture), the Board unanimously recommends a disability rating of 30%, coded 5299-5255 IAW VASRD §4.71a.  In the matter of the contended left clavicle fracture, multiple dental fractures and multiple superficial laceration conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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	
Surgical Residuals, Left Femur Fracture	5299-5255	30%	
Fracture, Left Clavicle	Not Unfitting	
Multiple Dental Fractures	Not Unfitting	
Multiple Superficial Lacerations	Not Unfitting	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140411, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150006327 (PD201401749)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA