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AF | PDBR | CY2012 | PD2012 01592
Original file (PD2012 01592.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXX                 BRANCH OF SERVICE: MARINE CORPS
CASE NUMBER: PD1201592            DATE OF PLACEMENT ON TDRL: 20020331
BOARD DATE: 20130430     Date of Permanent SEPARATION: 20040901


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-2 (9900/General Service Marine), medically separated for a completed stress fracture of the right femoral neck. The CI started experiencing hip pain in Nov 2001 and was diagnosed with a complete right femoral neck stress fracture. He underwent an open reduction internal fixation (ORIF). The right hip pain persisted postoperatively and could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was referred for a Medical Evaluation Board (MEB). The completed stress fracture of the right femoral neck condition, characterized as “compress fracture right femoral neck”, was forwarded to the Physical Evaluation Board (PEB). No other conditions were submitted by the MEB. The PEB adjudicated the completed stress fracture of the right femoral neck as unfitting, rated 30% with likely application of the Veterans Administration Schedule for Rating Disabilities (VASRD); and, placed the CI on the Temporary Disability Retired List (TDRL). After 29 months on TDRL, the CI’s completed stress fracture of the right femoral neck was considered to be stable, but still unfitting by the PEB, and rated at 10%. The CI initially requested reconsideration of this finding in lieu of a Formal PEB (FPEB), but eventually accepted this finding. The CI was medically separated with a 10% disability rating.


CI CONTENTION: “The original rating of 30% is what that B4R called for my condition has not changed since the 30% finding but my rating was. I suspect its because of the amount of injured service men coming into the VA. Therefore the injured Vet gets short changed. My leg hurts in a vehicle for more than 30 minutes. I used to be a police officer. I found a new career that does not require running, jumping etc. That career as a locomotive electrician was so rigorous I transferred to a desk job where I took a pay cut. The desk job requires 12 hours sitting at a desk which is not healthy. I now have elevated blood pressure which I feel is caused by sitting long hours. I am now on medication for this. Each winter my leg consistently hurts in cold weather. So much that I moved my family from Ohio to Georgia where its warmer. This injury has severely impacted my life. I believe I warrant my original rating of 30%.”


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (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 rating for the unfitting right hip condition is addressed below. The requested elevated blood pressure condition was not identified by the PEB, and thus is not 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 the Correction of Naval Records (BCNR). 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 (DES) 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 Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB disability ratings and fitness determinations as elaborated above. Redress in excess of the Board’s scope of recommendations must be addressed by the BCNR.


 RATING COMPARISON :

Final Service PEB - 20040311
 VA (16 Mo. Prior to Adjudication Date) - Effective 20020401
On TDRL - 20020331
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Completed Stress Fracture Right Femoral Neck 5255 30% 10% Stress Fracture, Right Femoral Neck, S/P ORIF Right Hip 5255-5253 10% 20021202*
No Additional MEB/PEB Entries
 Other x 0 20021202*
Combined: 30% → 10%
 Combined: 10%
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation.


ANALYSIS SUMMARY:

Completed Stress Fracture Right Femoral Neck.

The CI first presented with right hip pain in November 2001. Radiographic evaluation demonstrated a non-displaced fracture of the proximal right femur. The CI underwent an ORIF. He subsequently developed pain in the right hip. The narrative summary (NARSUM) 3 months prior to TRDL placement noted that the CI was progressing well with his rehabilitation, but would require extended convalescence and possible hardware removal. At an orthopedic evaluation 2 months prior to TDRL the CI reported that he had stopped using any support devices. The physical examination demonstrated full non-painful range-of-motion (ROM) and tenderness to palpation over the hardware. A VA rating decision, 21 months prior to permanent separation, documented mild pain with motion, particularly at extremes, hip flexion of 120 degrees, external rotation of 60 degrees, abduction of 45 degrees, adduction at 20 degrees, and a well healed surgical scar. At the January 2004 TDRL NARSUM, 8 months prior to permanent separation, the CI reported that he recovered well from surgery except for a dull persistent ache, rated at 5/10. He reported episodes (frequency was noted) of pain, rated 9-10/10, with walking. The pain episodes would cause him to fall or use a cane for balance to prevent falling. He did not report any medications for pain. The TDRL NARSUM physical examination documented a well healed right hip incision, hip flexion of 80 degrees, and external rotation of 30 degrees. Radiographic evaluation revealed that the femoral neck and head were in an anatomic position and there was no evidence of collapse or degenerative changes of the femoral head.
The Board directs attention to its rating recommendation based on the above evidence. Upon entry onto TDRL, the PEB rated the right hip condition at 30% for marked hip disability, coded 5255 (femur impairment of; malunion of). The Board carefully considered that the CI was 4 months after surgery with pain over inserted hardware. There was no evidence of nonunion, loose movement, or weightbearing brace for a higher disability rating. 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’s TDRL adjudication of the right hip condition.
The permanent rating should be based on the CI’s level of functioning at the time of permanent separation from military service. The Board directed its attention to its permanent rating recommendation based on the January 2004 TDRL NARSUM evidence which was most proximate to the date of permanent separation. The Board carefully considered the objective evidence and corroborating subjective evidence of persistent right hip pain. Member consensus was that upon exit from TDRL the ratable threshold was met for a slight hip disability. Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a permanent disability rating of 10% for the right hip condition was appropriately recommended in this case.

The Board concluded therefore that this condition could not be recommended for additional disability 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. 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 right hip condition, the Board unanimously recommends no change in the TDRL and permanent PEB adjudications. There were no other conditions within the Board’s scope of review for consideration.


 RECOMMENDATION : The Board, therefore, recommends that there be no re - characterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
Completed Stress Fracture Right Femoral Neck Condition 5255 30% 10%
COMBINED
 30% 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120901, 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 DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 19 Jun 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:
- x former USMC
- x former USMC
- x former USMC
- x former USN
- x former USMC
- x former USMC
- x former USN
- x former USMC


                                                      xxx
                                                     Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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