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AF | PDBR | CY2012 | PD2012 00718
Original file (PD2012 00718.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx                  CASE: PD1200718
BRANCH OF SERVICE: NAVY           BOARD DATE: 20130426
SEPARATION DATE: 20020915


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (HM3/Corpsman) medically separated for left hip pain (with contributing right leg pain) that resulted from a motor vehicle accident (MVA) in July 1999. The CI underwent multiple surgical procedures to his right leg along with physical and occupational therapy; however, he did not respond adequately to meet the physical requirements of his Rating or satisfy physical fitness standards. He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). The MEB forwarded only two conditions, left acetabular fracture (fx) and right tibia/fibular (tib/fib) fx, for Physical Evaluation Board (PEB) adjudication IAW SECNAVINST 1850.4E. The Informal PEB (IPEB) adjudicated the left hip pain as unfitting, rated 10%, with cited application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining (right) leg pain condition was determined to be Category II (conditions that contribute to the unfitting condition). The CI made no appeals and was medically separated with a 10% disability rating.


CI CONTENTION: “Only one issue was considered by the PEB in 2002. Other issues such as both of my legs being broken is what found my unfit but only was allowed to MED Board one condition. Since my PEB in 2002, PEB rules have changed which now considers multiple conditions for disability ratings. Upon review of the findings of the physical evaluation board, the wrong leg was rated. The most significant and permanent damage is to my right leg, but the left hip was rated for the PEB. With both legs and other injuries associated with the accident I feel the DOD percentage will increase. Also noted on the PEB findings report is that the injury to the right leg was combined with the left hip as a contributory condition. In actuality it is a separate condition as coded on the NAVMED 6100/1. A code of 7295 was given to the right leg and is stated to relate to the left hip when they are completely separate issues.”


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 left hip pain and the contended Category II right leg (tib/fib fx) pain conditions are addressed below and are within the DoDI 6040.44 defined purview of the Board. Any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Naval Records. The Board acknowledges the CI’s assertions that both left and right legs should have been adjudicated and the Navy PEB should have applied NAVMED 6100/1. IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20020501
 VA - (# Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Left Hip Pain 5299-5003 10% Residuals Left Acetabular Fracture 5299-5253 10% 20020125
Leg Pain (Tib/Fib Fx) Category II Residuals Open Right Tibia-Fibular Fracture 5010-5262 20% 20020125
Scar Right Tibia 7899-7804 10% 20020125
No Additional MEB/PEB Entries
 Other x19 70% 20020125
Combined: 10%
 Combined: 80% (with Bilateral Factor)
Derived from VA Rating Decision (VA RD ) dated 20030318 (most proximate to d ate of s eparation)


ANALYSIS SUMMARY:

Left Hip Pain Condition. The CI was involved in a MVA in July 1999 and suffered a posterior dislocation of the left hip with a comminuted acetabular (pelvic socket joint) fracture. He underwent closed reduction of the hip dislocation and was treated with physical and occupational therapy as an outpatient. The CI’s left hip did well until June 2001 when he felt a sharp pain in the left hip/groin while running. This new hip pain did not respond to non-operative treatment and the CI underwent arthroscopic surgery in January 2002 that revealed degenerative changes and labral pathology of the left hip. The narrative summary (NARSUM), approximately 8 months prior to separation, documented that the CI’s left hip remained symptomatic with inability to run secondary to left groin pain and occasional right tib/fib pain. The left groin pain was significant for impingement and he noted that he had significant trouble getting in and out of low chairs and rotating his hip into that position. The NARSUM contained this passage:

At this time, [the CI] has been unable to return to his duties and responsibilities consistent with his rank and rate because of his limitations from this motor vehicle accident in 1999. Despite significant period of limited duty and multiple orthopedic procedures, we have been unable to return him to full active duty status. His present condition was that he remained unable to run secondary to left hip pain and occasional right leg pain from previous fractures and their subsequent complications.

At the VA Compensation and Pension (C&P) exam, also performed approximately 8 months prior to separation, the CI reported he had been aware of pain and stiffness with limitation of motion in the left hip with an occasional "popping" sensation, especially since May of 2001. Radiographic studies were consistent with prior left acetabular fracture and labral tears. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Hip (Thigh) ROM
 NARSUM 8 Mos. Pre-Sep VA C&P 8 Mos. Pre-Sep
Flexion (125° Normal)
 95° 95°
Extension (20°)
 - -
External Rotation (45°)
 45° 35°
Abduction (0-45°)
 30 ° -
Adduction (45°)
 10 ° -
Comment
 Neg. Faber test (sacroiliac joint dysfunction); Pos. Impingement & Stinchfield tests (hip labrum tear); Neg. log roll (hip joint surface) Pos. pain with motion
§4.71a Rating
 10%* 10% *
* IAW VASRD § 4.59 Painful Motion

The Board directs attention to its rating recommendation based on the above evidence. The PEB applied the analogous VASRD code of 5299-5003 (Degenerative arthritis), and rated it 10%. That was consistent with rating under 5003 when non-compensable ROM measurements are present with evidence of painful motion IAW §4.59. The VA applied an analogous VASRD code of 5299-5253 (Thigh impairment due to limitation of abduction, adduction or rotation) and also rated it 10% based on painful, limited motion as there was no compensable ROM measurements in any plane of motion. Rating of hip/thigh disability under hip specific VASRD criteria is accomplished using ROM measurements or various subjective levels (slight, moderate or marked) of hip or knee disability following fracture involving the femur. As noted above, both probative exams document non-compensable ROM measurements for the left hip. There were degenerative changes of the left hip (femur and acetabulum) documented during arthroscopic surgery, therefore allowing the non-analogous application of VASRD code 5003. Rating under that code awards a 10% evaluation for non-compensable ROM measurements with evidence of painful motion. An alternative rating scheme would be to apply the analogous VASRD code 5299-5255 (Femur impairment due to nonunion or malunion of femur fracture) with slight, moderate or marked knee/hip disability. Although that code does not present the best clinical fit with the CI actual injury, it would be adjudged as “slight” in this case resulting in a 10% evaluation. Under any appropriate VASRD code, the disability evaluation would result in a 10% rating as granted by the PEB. 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 hip pain condition.

Contended PEB Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that right leg pain was a condition that contributed to the unfitting condition (deemed as a Category II condition). The Board’s threshold for countering this Category II determination is the VASRD §4.3 (reasonable doubt) standard also used for its rating recommendations which is adherent to the DoDI 6040.44 “fair and equitable” standard. The CI suffered an open, comminuted right tib/fib fx that was immediately repaired in July 1999. He underwent multiple surgical procedures to the right leg to include repeat internal fixation, bone grafting (due to non-union of the tibial and fibular fracture) and fibular osteotomy (cutting of bone) in June 2000. Over the ensuing 12 months, the CI’s became able to begin jogging slowly; however, he developed right leg pain and ultimately left hip pain (the unfitting condition) which prevented him from continued running. Although the right tib/fib fx was not specifically noted on the LIMDU document or the commander’s statement (which listed no specific condition), members agree that there is little doubt that the CI’s right leg pain was at least partially responsible for his required duty limitations. The CI’s left hip pain likely provided shelter for the limitations caused by the right leg pain as documented by this statement in the NARSUM, “His right leg has not bothered him significantly lately, mostly because he has been limiting himself to no running because of the left hip pain.” This condition was reviewed by the action officer and considered by the Board. After due deliberation, the members agree that the evidence with regard to the nature of the injury, the surgical procedures required to correct the injury, the prolonged recovery time and the likely functional impairment of the right leg (if not sheltered by the hip condition) favors its recommendation as an additionally unfitting condition for disability rating. It is appropriately coded 5262 (Impairment of tibia and fibula due to malunion) with slight knee or ankle disability and meets the VASRD §4.71a criteria for a 10% rating. The next higher moderate, 20%, disability rating (as granted by the VA) was not reached as the CI was able to jog and had “almost full ROM of the right ankle.”


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 hip pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended right leg pain (tib/fib fx) condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 5262 IAW VASRD §4.71a.


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

UNFITTING CONDITION
 VASRD CODE RATING
Left Hip Degenerative Arthritis 5299-5003 10%
Impairment Right Tibia/Fibula Due to Malunion 5262 10%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120613, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         xx
         Director of Operations
         Physical Disability Board of Review


 MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
                  COMMANDER, NAVY PERSONNEL COMMAND
                                         
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 28 May 13 ICO
(c) PDBR ltr dtd 22 May 13 ICO
(d) PDBR ltr dtd 22 May 13 ICO
(e) PDBR ltr dtd 17 May 13 ICO
(f) PDBR ltr dtd 10 May 13 ICO
(g) PDBR ltr dtd 17 May 13 ICO

1. Pursuant to reference (a), I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (g).
         
2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a. former USN : Disability separation with a final disability rating of 20% (increased from 10%) effective 1 March 2003.

b. former USN : Disability separation with a final disability rating of 20% (increased from 10%) effective 15 September 2002.

c. former USMC : Disability retirement with a final disability rating of 40% (increased from 20%) and placement on the Permanent Disability Retired List effective 14 January 2004.

d. former USN : Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 15 November 2002.

e. former USMC : Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 31 August 2005.

f. former USMC : Disability separation with a final disability rating of 20% (increased from 10%) effective 15 November 2001.

3. Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.



                                                      xx
                                                      Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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