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AF | PDBR | CY2012 | PD2012 01579
Original file (PD2012 01579.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201579   SEPARATION DATE: 20070911
BOARD DATE: 20130417


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, SPC/E-4, (92G/Food Service Operator), medically separated for chronic pain after sustaining a left distal femur fracture in 2005 requiring open reduction and internal fixation with an intramedullary rod. Due to a non-union he required an additional surgery in April 2006. His fracture healed but he had pain in his left femur and his left hip at the bone graft site. The CI did not improve adequately with treatment 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 MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the chronic pain status post (s/p) femur fracture condition as unfitting, rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated.


CI CONTENTION: “I have major injuries sustained to my left petilla, left femur, ribs 1&2 left side, left klavical broken, 2 traumatic brain injuries (concusions x 2) & left pelvic grafting that hinders long distance walking & standing. Flex-rod along left femur w/plate & screw. Two nails in left petilla. At time of separation was still prescribed percocet’s for pain. Still on daily Tramadol & other meds w/prescribe mood/anti-depressants.” [sic]


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The left femur, associated left pelvic grafting and left patella conditions as requested for consideration, meet the criteria prescribed in DoDI 6040.44 for Board purview, and are addressed below. The other requested conditions, ribs, left clavicle, traumatic brain injury (TBI)/concussions are not within the Board’s purview. 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 Army Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20070810 VA (1 week Pre-Separation) – All Effective Date 20070912
Condition Code Rating Condition Code Rating Exam
Chronic Pain s/p Left Femur Fracture 5099-5003 10% Left Tibial Fracture 5262 10% 20070906
Left Knee Fracture 5257 10% 20070906
↓No Additional MEB/PEB Entries↓ Right Shoulder injury 5201 10% 20070906
Cervical Spine strain 5237 10% 20070906
Left Shoulder fx 5010 10% 20070906
R knee injury 5260 10% 20070906
Scar L Shoulder 7804 10% 20070906
Scar Left Knee/Femur/ Thigh 7804 10% 20070906
0% X 1 / Not Service-Connected x 7 20070906
Rating: 10% Combined Rating: 60%


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, 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. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Left Femur Condition. In January 2005, the CI was involved in an SUV multi-rollover accident and sustained a comminuted left distal shaft femur fracture. His injury was surgically addressed with the placement of an intramedullary femoral rod. The post-operative rehabilitation period was complicated by non-healing of the fracture site and persistent pain which led to bone graft and surgical plate insertion in April 2006. Despite the revision and aggressive physical therapy (PT), the CI complained of persistent pain. Radiographs revealed internal hardware consisting of a rod, side plate, and metal screws transfixing the left femur in excellent position and alignment. X-rays did not reveal evidence of a proximal tibia fracture. Magnetic resonance imaging (MRI) of the knee showed no evidence of ligamentous or meniscal injury. Orthopedic follow-up on 18 May 2007 (4 months prior to separation) and 29 June 2007 indicated that the CI continued to complain of pain in the left knee. The examiner noted no tenderness at the fracture site and reported that X-rays showed the fracture was healed. At the MEB examination (performed 2 months prior to separation) the CI reported pain in his left distal femur and left hip (iliac crest; site of donor bone graft). Examination revealed well-healed scars of the distal thigh and over the iliac crest. Collateral knee ligaments were stable and the Lachman test was “1-A”, indicating a stable anterior cruciate ligament (ACL). Gait was noted to be with the assistance of a cane. At the VA Compensation and Pension (C&P) examination (performed a week prior to separation), subjective complaints pertaining to his left lower extremity were not delineated. The examination revealed use of a cane with an antalgic gait due to the left knee problem. The examiner stated: “…exhibited mild to moderate manifestation of pain and stiffness on his left knee and also on his left distal femur.” In describing an x-ray from 11 October 2006, the VA examiner stated, “there is hardware placement over the femur and tibia for stabilization of the multi-fragmentary fractures involving the distal femur and the proximal tibia.” There were three range-of-motion (ROM) evaluations (knee and thigh) in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation and are summarized in the chart below.


Left Knee ROM
(Degrees)
MEB (Ortho) ~2 Mos. Pre-Sep

MEB (PT)
~2 Mos. Pre-Sep

VA C&P
~1 week Pre-Sep
Flexion (140) 110 85,83,81 110 or 115
Extension (0) -3* -6,-7,-7** -5
Comment + tenderness + Painful motion + Painful motion
+ tenderness
§4.71a Rating 10% 10% 10%
                          *Hyperextension .         **Limited extension .

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the chronic pain left femur fracture condition at 10% using an analogous 5003 code (degenerative arthritis) based on the USAPDA pain policy. The VA separately rated the left lower extremity for two injuries: 5262 (impairment of tibia and fibula) and 5257 (knee, other impairment of) at 10% each. Although a tibia fracture was mentioned by the VA examiner (and appears to have influenced the VA’s selection of the 5262 code), the evidence throughout the service treatment record indicated no such fracture was present. The sole fracture site was the distal femur. The VA further dual coded the CI’s condition by also assigning a rating for knee instability under 5257. While dual coding is an appropriate option in some cases, the Board questioned the exam finding underpinning that code and rating. The manner in which the examiner described the drawer sign (an assessment of cruciate ligament stability, and the basis for the “mild laxity” conclusion) is not consistent with the accepted performance of that maneuver. Moreover, the MEB examiner clearly described a normal Lachman’s test, indicating an intact ACL, and further specified that other knee ligaments were also intact. Furthermore, the CI did not complain of knee laxity, nor did an MRI reveal evidence of ligament injury. The Board therefore agreed that rating under 5257 for instability is not supported. Board members also concluded that limitation of knee joint motion was non-compensable, but the PEB’s 10% rating was consistent with application of §4.40 (functional loss) or §4.59 (painful motion). Other pathways to a higher rating were deliberated. Under the 5255 code (femur, impairment of) a 10% rating is warranted for “slight” knee or hip disability, whereas “moderate” knee or hip disability justifies a 20% rating. The Board majority agreed that “slight” was the most accurate descriptor of disability under that code, and therefore did not lead to a higher rating in this case. The Board also concluded that any patella or knee issue did not warrant a separate rating and was properly subsumed under the 5099-5003 code assigned 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 chronic pain after distal femur fracture condition.

Left Pelvic Grafting Condition. The Board also considered the residual effects of pelvic grafting, which the CI contends warrants additional disability rating. In April 2006, bone was surgically removed from the left iliac crest and used as donor grafting material to aid in healing of the distal femur fracture. Although two orthopedic evaluations 3-4 months prior to separation did not mention hip area pain, the MEB examiner indicated that the iliac crest donor site caused pain. The VA examination was silent regarding any hip pain; and the VA did not rate this condition except as pertaining to a scar. The Board notes that a pelvic grafting condition must itself be independently unfitting to merit additional rating. 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. This condition was not profiled, was not implicated in the commander’s statement, and was not judged to fail retention standards. The condition was reviewed and considered by the Board. There was no indication from the record that it significantly interfered with satisfactory duty performance. The Board concluded that the pelvic grafting was not found to be unfitting and therefore could not be recommended for an additional rating.


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 chronic pain after distal femur fracture condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic pain after distal femur fracture condition and IAW VASRD §4.71a, the Board [by a vote of 2:1] recommends no change in the PEB adjudication. The single voter for dissent (who recommended adopting the VA rating 5255 at 20%) did not elect to submit a minority opinion. In the matter of the contended left pelvic grafting condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board therefore recommends that there be no recharacterization of the CI’s disability and separation determination:

UNFITTING CONDITION VASRD CODE RATING
Chronic Pain After Distal Femur Fracture 5099-5003 10%
RATING 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120713, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         Physical Disability Board of Review

SFMR-RB                                                                         


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

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130010368 (PD201201579)


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 and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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