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AF | PDBR | CY2012 | PD2012 01787
Original file (PD2012 01787.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:             CASE: PD1201787
BRANCH OF SERVICE: ARMY           BOARD DATE: 20130423
DATE OF PLACEMENT ON TDRL: 20020806
Date of Permanent SEPARATION: 20050902  


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (63W10/Wheel Vehicle Repairer), medically separated for history of left leg fractures, femur and tibia requiring open reduction and fixation (ORIF), and history of total disruption of the right knee secondary to an auto accident conditions. CI sustained severe injuries to bilateral lower extremities as well as thoracic trauma and head trauma during a motor vehicle accident (MVA) May 2001. The left leg fractures, right knee condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) 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 conditions, characterized as peripheral nerve injury and reflex sympathetic dystrophy conditions as likely recommended unfitting and “paste from MEB,” were forwarded to the Physical Evaluation Board (PEB). The MEB also identified and forwarded two other conditions (as identified in the rating chart below) for PEB adjudication. The Informal PEB (IPEB) adjudicated left leg fractures, and right knee as unfitting, rated 10% and 10%, The CI made no appeals, and was medically separated with a 20% combined disability rating.


CI CONTENTION: The CI attached a two page statement to his application which was reviewed by the Board and considered in its recommendations.


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 leg and right knee conditions and the not unfitting left leg osteomyelitis and closed head injury are addressed below; and, 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 :

Final Service IPEB – Dated 20050902
 VA - (~6 Mos. Prior to Adjudication Date )
Condition
 Code Rating Condition Code Rating Exam
On TDRL – 20020806#
 TDRL Sep.
History of Left Leg Fractures, Femur and Tibia Requiring Open Reduction and
Fixation		 5257 20% 10% Residuals of Left Femur Fracture and Left Tibial Plateau Fracture Resulting In Four Surgeries Including Open Reduction Internal Fixation, Osteotomy, and Reconstruction of The Medial Collateral Ligament 5261-5257 30% STR/ 20030107
History of Total Disruption of The Right Knee Secondary To an Auto Accident 5257 20% 10% Residuals Right Leg Anterior Cruciate Ligament and Posterior Cruciate Ligament Disruption with Surgical Repair and Arthroscopic Surgery 5299-5257 30% STR/ 20030107
Peripheral Nerve Injury Not Unfitting No VA Entry
Reflex Sympathetic Dystrophy Not Unfitting No VA Entry
Septic Arthritis, Left Knee- Resolved Not Unfitting Septic Arthritis and Osteomyelitis NSC*
Status Post Osteomyelitis Left Proximal Tibia Not Unfitting
Status Post Pneumothorax on The Right Not Unfitting Status Post Traumatic Right Pneumothorax 6843 0%** 20030107
Status Post Closed Head Injury Not Unfitting Postconcussive Headache Syndrome Status Post Head
Injury
 8046-8100 10% 20030107
Central Line Bacteremia Not Unfitting No VA Entry
↓No Additional MEB/PEB Entries↓
 0% x 2**/Not Service Connected x 1* 20030107
Combined: 20%
 Combined: 70%
VARD 20030512 (most proximate to Date of Separation)


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. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES 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 (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. The Board further acknowledges the CI’s contention for ratings for other conditions documented at the time of separation, and notes that its recommendations in that regard must comply with the same governance.

Left Leg and Right Knee Conditions. The majority of evaluations in the record address both the left leg and right knee conditions at the same time. The narrative summary (NARSUM) dictated 4 June 2002 notes that the CI was involved in a MVA on 23 May 2001 and sustained severe injuries to both of his legs. He fractured the shaft of the femur and the tibia of the left leg and also had a depressed lateral tibial plateau fracture. He ruptured the AC and other ligaments of the posterior lateral corner of the right knee. He had an initial surgery to reduce and stabilize his fractures, followed by another surgery to repair his multiple ligament injuries in the right knee. Following months of rehabilitation, the CI had restricted range-of-motion (ROM) of the right knee due to fibrosis and the left knee was very unstable. A third surgery was performed to lyse adhesions and manipulate the right knee to improve ROM and readdress multiple issues with the left leg. A medial collateral ligament (MCL) tear was repaired, the re-depressed fracture was reduced, a partial meniscectomy was performed and symptomatic hardware was removed on the left. The CI was given braces for both knees for instability and underwent aggressive ROM therapy. He presented again approximately 3 weeks after surgery with an infection of the left knee and was readmitted for lavage and debridement of the knee infection with removal of the residual lateral meniscus. Following the left lower extremity joint and bone infection the CI had a non- healing area of the lateral left knee at the joint line. At the time of the TDRL entry NARSUM the CI had been and was still in physical therapy for his knees and also wound therapy for the left knee. He had a draining sinus tract on the outside of the left knee joint. He was able to walk about a half mile with a cane. He was unable to walk long distances, run, jump, or lift heavy things.

At the TDRL entry MEB exam on 4 June 2002 the CI reported problems with the left knee due to instability, decreased ROM, and the chronic wound. The MEB exam noted the left knee ROM was 15-50 degrees (normal 0-140 degrees). There was an approximately four centimeter wound at the level of the joint line draining “synovial–type” fluid. There was no purulence or signs and symptoms of infection present. The examiner noted that probing the sinus tract showed it to be less deep than previously and it had healed significantly. Other scars on the left leg were well healed. There was a negative Lachman’s, no instability, varus laxity, or tenderness of the joint line. The examiner noted that full evaluation of the stability of the knee was hindered by the decreased ROM. There was 1+ valgus laxity with a solid endpoint. There was graded 4/5 strength (graded 1-5) with straight leg raise (SLR) on the left and poor quadriceps muscle tone. X-rays showed some hardware remaining in the femur; sclerosis and depression of the lateral aspect of the knee; almost complete loss of the joint space of lateral aspect of the knee with weight bearing; and a valgus deformity of 17 degrees, compared with 7 on the right. At the TDRL entry MEB exam, the CI reported that the right knee bothered him going down stairs, but had minimal stability complaints. He had stopped wearing the right knee brace and felt it was strong. Right knee ROM was 0-110 degrees. Surgical scars were well healed. He had a positive 2B Lachman’s with a soft endpoint; 2+ pivot shift test; and anterior drawer sign. There was 1+ varus laxity in extension and 2+ varus and valgus laxity in flexion with endpoints. X-ray showed retained hardware with a well maintained joint space.

At the VA Compensation and Pension (C&P) exam on 7 January 2003, approximately 5 months after TDRL entry (and approximately 33 months prior to separation), the CI reported left knee pain, swelling, stiffness and heat, and right knee pain. He denied locking. He reported that both knees were unstable, but the right slips just a little, the left a lot more. He reported fatigue and lack of endurance of both knees. He reported flare-ups about once per week lasting a day and managed them by decreased activity. The CI was not using any assistive devices, and was not using a brace on either knee because he lost them in transit. The C&P exam of the left knee showed no evidence of active infection and he was not on antibiotics. There was a valgus deformity of 15 degrees. There was swelling, crepitus and tenderness. Left knee ROM was 5 degrees extension and 83 degrees flexion. There were no DeLuca criteria. There was severe instability of the medial and lateral collateral ligaments and the anterior cruciate ligament (ACL), with a positive anterior drawer sign and Lachman’s of 5 mm. There was muscle atrophy of the quadriceps noted with muscle strength graded 4/5 (1-5) on the left compared to 5/5 on the right.
The C&P exam of the right knee showed no deformity or atrophy with minimal swelling and crepitus with pain. Right knee ROM was 10 degrees hyperextension and 105 degrees flexion. No DeLuca criteria were noted. Severe instability of the medial and lateral collateral ligaments and instability of the ACL was noted on the right, with a positive anterior drawer sign and a positive Lachman’s.

The TDRL re-evaluation exam occurred at a local VA facility on 14 September 2004, approximately 12 months prior to separation. At the exam the CI reported that he did not use a cane or other device for walking, or wear braces on either leg. He had chronic pain in the left leg of 3 out of 10 that could flare-up to 6 out of 10, but responded to pain medication. He reported feeling okay in the spring and summer but in the winter the left knee hurt with cold and damp conditions. He could walk up two to three flights of stairs without severe problems, but would need to rest afterwards. His reported that his right knee was unstable and frequently gave out. X-rays from February 2003 were reported to show post-surgical changes of the left and right knees with retained hardware and changes of osteoarthritis bilaterally. On exam his gait was observed to be altered and ambulation labored with obvious decreased ROM and deformity of the left side. There were no neurological deficits, sensation was intact and reflexes were normal except for a weak knee jerk on the left.

Left knee TDRL re-evaluation showed scars that were well healed except for the lateral knee scar that was described as wide and deep but healed. Left knee ROM was flexion 0-85 degrees, extension 0 to -10 degrees; with painful motion and DeLuca criteria of decreased ROM due to weakness and lack of endurance. There was instability of the MCL and slight instability of the ACL and posterior cruciate ligament (PCL). Marked quadriceps atrophy was noted and strength was graded 2/5. However, in an addendum to the exam for the PEB 6 May 2004, ACL instability of both the left and right knees was noted as severe with Lachman’s with a “minimal end feel” and instability of 5 mm each knee and the left knee weakness was graded 4/5 with flexion and extension without pain. On exam the right knee was normal to inspection and palpation with well healed scar. Right knee TDRL re-evaluation showed ROM of flexion 0-110 degrees with pain and extension was normal without any pain. There was decreased flexion on repetition due to weakness and lack of endurance. There was a slight pop and click with flexion and extension. There was no obvious varus or valgus deformity at rest, but there was valgus laxity of 1+ in extension and 2+ in flexion and varus laxity of 2+ in flexion only. There was slight positive anterior drawer sign. There was no quadriceps atrophy but strength was reported as 4/5.

At a remote C&P exam 3 April 2008 the CI was employed in a seated job. He reported continued difficulty with walking standing or lifting and that he wore braces on both knees. He was observed to have a significant limp. Left knee ROM was 0-80 degrees with crepitus and pain at end range of motion. No significant instability was found to be present, but testing was limited by pain. There were no signs of meniscal injury, and no mention was made of quadriceps muscle atrophy or weakness. The right knee ROM was 0-130 degrees with painful flexion. There was crepitus but no tenderness to palpation, deformity, laxity, or instability was noted.

The Board directs attention to its rating recommendation based on the above evidence. At TDRL entry the PEB rated the left leg condition as 5261 at 20% for ROM with extension limited to 15 degrees and the right knee as 5257 (instability) at 20% for moderate instability. The VA rated the left knee as 5261-5257 (analogous to limited extension, instability) and the right knee as 5299-5257 (analogous to knee impairment due to instability), both at 30% for severe instability. The Board considered the left leg rating. The MEB TDRL entry exam indicated the CI’s left knee had limited ROM of both extension and flexion and that the knee was unstable evidenced by +1 valgus laxity on exam, depressed lateral tibial plateau on X-ray, and a 17 degrees valgus deformity of the leg. The C&P exam 5 months after TDRL entry indicated improved left knee range of motion with instability. The Board considered the evidence at the time of entry into TDRL and noted that the CI had limitations of left leg flexion, extension, and instability, as well as an active draining sinus tract due to osteomyelitis. The Board checked to see if the highest rating was achieved by rating ROM or instability with left leg osteomyelitis or coding as 5262 (tibial impairment with knee disability) with osteomyelitis and found a rating of 30% could be achieved by either path. The Board agreed that the left leg condition was best coded as 5262 due to the CI’s overall marked left knee impairment secondary to multiple factors paramount among them the left knee joint deformity due to the depressed tibial plateau fracture with a valgus deformity of the left leg resulting in decreased ROM and instability. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating for the left leg condition at TDRL entry as follows: 5262 at 30%. The Board next considered the right knee impairment. The MEB exam indicated the CI’s right knee was unstable with reduced but non-compensable loss of flexion. The C&P exam 5 months after TDRL entry indicated the right knee was unchanged with decreased ROM and persistent instability. The Board noted that the right knee disability was due to moderate instability and agreed that there was insufficient cause to recommend a change in the PEB adjudication for the right knee condition at TDRL entry.

At the conclusion of TDRL, the PEB rated the residuals of the left leg fractures as 5257 (knee instability) at 10% as slight (positive Lachman’s of 5 mm) and rated the right knee as 5257 also at 10% (Lachman’s of 5 mm). In 2003 as discussed above, the VA rated the left leg residuals as 5261-5257 at 30% and the right leg residuals as 5299-5257 at 30%, citing severe instability of both knees. In 2008 the VA continued the rating of both the left leg and right knee conditions at 30%. The Board noted that at the TDRL re-valuation exam CI had limited, but improved flexion and extension of the left leg, compensable only at 10% for painful motion IAW 4.59 (painful motion). The left knee was mild to moderately unstable (Lachman’s 5 mm) with persistent, obvious valgus deformity of the left leg. The Board deliberated on the conflicting evidence in the record between the September 2004 TDRL re-exam and the May 2005 addendum of left knee slight instability and moderately severe quadriceps muscle weakness graded 2/5 versus “severe instability” of 5mm and mild quadriceps muscle weakness graded 4/5. The Board referred to the 2008 C&P exam to aid in reconciling the conflicting examinations. In the 2008 exam the left knee continued with the valgus deformity, and painful, decreased, ROM. There was no instability, but testing was noted to be limited by pain. There was no significant quadriceps weakness or atrophy mentioned. The Board opined that the totality of the evidence in the record supported that at the time of permanent separation the CI had mild to moderate left quadriceps atrophy and weakness and left knee instability versus severe weakness and instability. The Board deliberated applying dual ROM and instability codes IAW VA policy in effect at the time of separation (General Counsel Opinion of July 1, 1997 and Fast Letter 04-22 of October 1, 2004) versus coding with 5262 for knee disability due to tibia/fibula impairment. The Board noted that equivalent ratings were achievable through either path and chose 5262. The Board opined that the totality of the available evidence supports that the CI’s left leg condition of healed fractures of the femur and tibia resulting in valgus deformity with painful, limited ROM and mild to moderate instability most nearly met the 30% disability rating at the time of permanent separation. 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 at permanent separation. The Board next addressed the right knee disability rating. At the TDRL re-exam the right knee was moderately unstable with 2+ varus and valgus laxity and mild to moderately positive Lachman’s anterior drawer sign and mild limited flexion of 110 degrees. Popping and clicking were noted with flexion and extension. The CI reported that the right knee gave way frequently. The Board agreed that the right knee met the 5257 10% rating and deliberated whether it met the 20% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right knee condition at permanent separation.
Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the left proximal tibia osteomyelitis and closed head injury conditions were 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.

1) Left proximal tibia osteomyelitis. As discussed in the history of the left leg injuries, the CI was treated for left knee joint infection and tibial osteomyelitis with hospitalization for incision and drainage, debridement, and intravenous antibiotics. Following treatment there was a persistent draining sinus tract located on the lateral left knee. Multiple interventions were employed to assist the wound healing and at the time of TDRL entry MEB the sinus tract was noted to be still draining a small amount of fluid. At the TDRL re-valuation in 2004 the site of the previous open wound was noted to be well healed. At the time of permanent separation there had been no recurrence of the osteomyelitis. VASRD §4.43-Osteomyelitis specifies “ Chronic, or recurring, suppurative osteomyelitis, once clinically identified, including chronic inflammation of bone marrow, cortex, or periosteum, should be considered as a continuously disabling process, whether or not an actively discharging sinus or other obvious evidence of infection is manifest from time to time, and unless the focus is entirely removed by amputation will entitle to a permanent rating to be combined with other ratings for residual conditions, however, not exceeding amputation ratings at the site of election. ” The Board unanimously agreed that IAW §4.43 the CI’s proximal tibial osteomyelitis was a separately unfitting condition, both at TDRL entry and at permanent separation and favors its recommendation for an additional disability ratings IAW §4.71a. At TDRL entry the left knee was draining from an open sinus. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% coded as 5000 (osteomyelitis) for the left tibial osteomyelitis condition at TDRL entry. At permanent separation the left knee wound was healed without drainage or other evidence of active infection. There had been no recurrences of active infection. After due deliberation considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% coded as 5000 for the left tibial osteomyelitis condition at permanent separation.

2) Closed head injury. The CI experienced a closed head injury and scalp laceration with an unknown history of loss of consciousness due to the 23 May 2001 MVA. The CI could not remember what had happened during the accident. A CT scan of the head was negative. A note dated 24 September 2001 indicates that the CI had a pre-existing migraine history but that headaches were more frequent since the accident. The NARSUM notes only the history of head trauma with no current symptoms noted. On the DD 2807 the CI noted that he had migraines headaches “since the wreck.” At the VA general exam in 2003 the CI reported that his headaches were decreased in frequency and severity and he did report have any dizziness or syncope. At the C&P neurological exam in 2003 the same day, the CI reported that he was having headaches once every 2 weeks since the MVA and that prior to the accident he “never had headaches.” He reported help from medication with the headaches but at times being unable to function. He said his memory was not as sharp after the accident. He denied any personality or behavior changes. The VA neurological exam showed a normal mental status examination (MSE) and the examiner diagnosed a post-concussive headache syndrome. The closed head injury condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. It was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any of this condition significantly interfered with satisfactory duty performance. The evidence in the record supports that at TDRL entry and later at permanent separation the CI was not experiencing any sequelae of the closed head injury that was unfitting. 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 contended closed head injury condition and so no additional disability rating is recommended.


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. In the matter of the left leg condition, the Board unanimously recommends a disability rating of 30% at TDRL entry and a permanent disability rating of 30%, coded 5262 IAW VASRD §4.71a. In the matter of the right knee condition, the Board unanimously recommends no change in the PEB adjudication at TDRL entry and a permanent disability rating of 20% at permanent separation, coded 5257 IAW VASRD §4.71a. In the matter of the contended left tibial osteomyelitis the Board unanimously agrees that it was unfitting and recommends a disability rating of 20% at TDRL entry and by a 2:1 vote the Board recommends a permanent disability rating of 0%, coded 5000 IAW VASRD §4.71a, the single voter for dissent (who recommended a disability rating of 20% at permanent separation) did not elect to submit a minority opinion. In the matter of the contended closed head injury condition, the Board unanimously recommends no change from the PEB determination 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
TDRL PERMANENT
Left Leg Condition 5262 30% 30%
Left Tibial Osteomyelitis 5000 20% 0%
Right Knee Condition 5257 20% 20%
COMBINED w/BLF
 60% 50%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121002, 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 AR20130009529 (PD201201787)


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 constructively place the individual on the Temporary Disability Retired List (TDRL) at
60% disability rather than 40% disability for the period October 18, 2002 to
October 19, 2005 and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50%.

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 temporary disability 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 day following the TDRL period.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for 60% retired pay for the temporary disability retired period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 50% effective the day following the TDRL period.

         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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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