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AF | PDBR | CY2012 | PD2012 01891
Original file (PD2012 01891.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXX    CASE NUMBER: PD120 1891
BRANCH OF SERVICE: Army   BOARD DATE: 2013 0620
Separation Date: 20050826


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantryman) medically separated for a right mandibular defect. The CI was injured in an improvised explosive device (IED) blast in December 2003 while serving in Iraq. The injury to his face, neck, and jaw could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P4 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded right mandibular defect and right intermittent otalgia to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The MEB also identified and forwarded posttraumatic stress disorder (PTSD), chronic, as medically acceptable. The Informal PEB adjudicated the right mandibular defect as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions, right intermittent otalgia, and posttraumatic stress disorder ( PTSD ) were determined to be not unfitting. The CI made no appeals and he was medically separated.
______________________________________________________________________________

CI CONTENTION : The CI elaborated no specific contention in his application.


 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 rating for the unfitting right mandibular defect condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention either 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 20050726
 VA - (5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam


Right Mandibular Defect

 9999-9906 20% Residuals Of Complex Fracture Of Right Mandible 9902 30% 20060112
Scars on Right Side of Face, Residuals of Shrapnel Wounds 7800 30% 20060112
Right Intermittent Otalgia Not Unfitting No VA Entry
PTSD Not Unfitting PTSD 9411 30% 20060125
No Additional MEB/PEB Entries
 Other x 5 20060112
Combined: 20%
 Combined: 80%
Derived from VA Rating Decision (VARD) dated 20060313 ( most proximate to date of separation [DOS]). VARD 20050210 grants Entitlement to Vocational Rehabilitation ; VARD 20080522 grants Entitlement to Individual Unemployability effective 20080326


ANALYSIS SUMMARY : The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veteran s Affairs , 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 V eteran’s disability rating should the degre e of impairment vary over time.

Right Mandibular Defect Condition . The CI suffered multiple facial injuries including a comminuted mandibular fracture and lacerations from an IED on 8 December 2003 that requir ed an emergency tracheostomy with foreign body removal and MEDVAC from country to Landstuhl and Walter Reed for extensive treatment. The CI underwent an extensive operation for an incision and drainage to right facial abscess; exploration of nasal lacrima l system; repair of complex facial lacerations, and repair of infraorbital lid ectropion with local regional flaps, including bi - lobed flap; and removal of shrapnel from right maxillary sinus. The CI was followed by o tolaryngology (ENT) and was seen at the VA for a follow- up that noted shrapnel wounds to the face and mandible were healing with immobilization wires in place. The CI was followed by ENT at Walter Reed Medical Center. A CT scan indicated no evidence of an abscess and the right mandibular plate was in place. The CI underwent extensive oral maxillofacial surgery (OMFS) for removal roots remaining from five teeth, a lengthening with full-thickness graft, right lower eyelid, and a complex right cheek scar revision with a full thickness graft . The CI was followed by ENT (April to July 2004) and was noted to have healing wounds, however the re was a right mandibular d e fect noted and there was a need for bone grafting reconstruction . The CI was given a permanent P4 p rofile for chronic pain and facial de fect with limitations of “unable to wear helmet or mask due to chronic pain.” The MEB n arrative summary exam , dictated approximately 7 months prior to separation , noted tenderness to palpation of the right mandible and intermittent right otalgia . The CI was seen by the OMFS in May 2005 who documented that the CI had no complaints with mandibular range - of - motion (ROM) to 50 millimeters (mm) and a no rmal temporal mandibular joint . The o ral s urgery MEB a ddendum , completed approximately a month prior to separation , documented that there was a right posterior mandibular body boney defect that i nvolved all of the alveolus in the area as well as part of the basal bone . The surgeon reported a panorex that day and documented the mandibular defect was approximately 5 centimeter (cm) in the anterior-posterior dimension and an average of 1 cm in a vertical dimension and a fractured reconstruction plate . The CI ’s maximum incisor opening was approximately 50 mm with no pain. The VA Compensation and Pension (C&P) examination , performed approximately 4 months after separation , documented that a panorex indicated a non-union in the area of number 31, that 70% of the bone was missing and that there was a plate holding the jaw together. Examination noted the lower arch was held together with a splint with nonunion in the area of tooth #30. He opined that surgery to add bone to this area would not work. There was a maximum opening of 55 mm with right and left lateral excursion of 11 mm and the examiner stated this was great ROM of the jaw; however , the CI currently had right lateral pterygoid pain, disfiguring facial scars , and the lower right side of his lip had lost the mandibular nerve sensory input.

The Board directs attenti on to its rating recommendation based on the above evidence . The PEB coded the right mandibular defect analogous to 9906 ( ramus, loss of whole or part of) rated 20% (Not involving loss of temporomandibular articulation: Unilateral). The VA coded the residuals of complex fracture of right mandible as 9902 mandible, loss of approximately one-half rated at 30% (not involving temporomandibular articulation). There was clear documentation in the service treatment record that the CI had a right mandibular body (not mandibular ramus) defect and the oral surgeon MEB addendum reported that the panorex showed the defect to be approximately 5 cm in anterior-posterior dimension and an average of one cm in a vertical dimension in the right posterior mandibular body. With involvement of the mandibular body and not the ramus, VASRD code 9902 more accurately describes the CI’s condition and it should be used for rating. It is not clear why the PEB rated the condition analogous to a less accurate code. The oral surgeon noted the defect was approximately 5 cm by 1 cm and the C&P examination noted that 70% of the bone was missing. No examination noted involvement of the temporomandibular articulation. The Board agreed that code 9902 was the appropriate VASRD code to use for this condition. After due deliberation, considering all of the evide nce and mindful of VASRD §4.3 r easonable doubt, the Board recommends a disability rating of 30 % for the right mandibular defect condition coded 9902.


 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 r ight m andibular d efect condition, the Board unanimously recommends a disability rating of 30 %, coded 9902 IAW VASRD §4. 150. 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
Right Mandibular Defect 99 02 3 0%
COMBINED
 3 0%


The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 121001 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record





XXXXXXXXXXXXXXX , DAF
President
Physical Disability Board of Review


SFMR-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 XXXXXXXXXXXXXXXXXXX, AR20140001862 (PD201201891)


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                                                  XXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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