RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20050715 

 
NAME:    
 
CASE NUMBER:  PD1200256                                                               
BOARD DATE:  20121019 
 
 
SUMMARY  OF  CASE:    Data  extracted  from the  available  evidence of  record  reflects that  this  covered 
individual (CI) was an active duty LCPL/E-3 (7051/Aircraft Fire Fighting and Rescue Specialist), medically 
separated for left tibia open IIIA fracture, status post (s/p) open reduction internal fixation (ORIF) with 
intramedullary nail.  On 7 March 2004, the CI suffered a penetrating wound of the left lower leg with 
fractures of the tibia and fibula.  He underwent numerous surgical procedures and rehabilitation, but did 
not improve sufficiently to meet the physical requirements of his Military Occupational Specialty (MOS) 
or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) twice and referred for a 
Medical Evaluation Board (MEB) which forwarded “other orthopedic aftercare” and “other symptoms 
involving nervous and musculoskeletal systems”, “major depressive disorder, single episode, moderate 
severity”  and  chronic  PTSD  (posttraumatic  stress  disorder)  to  the  Physical  Evaluation  Board  (PEB)  as 
medically  unacceptable.    The  PEB  adjudicated  the  left  leg  condition  as  unfitting,  rated  10%,  with 
application of  the  Veteran’s  Affairs  Schedule  for  Rating  Disabilities  (VASRD)  as outlined  in  SECNAVIST 
1850.4E.    The  PEB  determined  “nerve  deficit  to the distribution of  the superficial  peroneal  and  deep 
peroneal continuous distributions” and “wound closure with the use of status post split-thickness skin 
graft”  conditions  were  related  Category  II  diagnoses.    Major  depressive  disorder  (MDD)  and  chronic 
PTSD were determined to be not separately unfitting and to be Category III conditions.  The CI made no 
appeals and was medically separated with a 10% disability rating.   
 
 
CI CONTENTION:  “Initial PEB filing regarded blast injury to lower left leg, with addendum concurrently 
filed for PTSD/Major Depressive Disorder.  Both evaluating physicians were USN medical officers.  On 25 
May  2005,  Board  found  Category  I:  Unfitting  Condition:  [injury  to  leg].  and  assigned  rating.    Above 
additional psychiatric conditions concurrently found to be Category III: Not Unfitting.  I was counseled by 
the PEBLO at NMCSD that the unfitting conditions did not likely constitute sufficient grounds to appeal 
the Board's decision at that time and accepted the findings.  On 18 May 2005 initial application (VA form 
21-526) made to Dept. of Veterans Affairs (VA) for disability/benefits.  Information provided to VA was 
identical  to  that  provided  to  PEB,  with  sole  (sic)  the  addition  of  the  Board's  formal  report  dated  17 
March  2005,  prior  to  VA  rating  decision.    On  25  July  2005,  V  A  awarded  combined  rating  of  100% 
effective 16 July 2005 citing: "PTSD, status post leg [injury], left knee and left ankle impairment, scars 
(and  bilateral  hearing  loss)"  (see  VA  addendum  Pg.  2,  dated  25  July  2005).    The  VA  rating  for  these 
conditions  has  not  changed  negatively  to  date,  has  been  separately  affirmed  multiple  times  upon 
additional review/evaluation and is permanent.” 
 
 
SCOPE  OF  REVIEW:    The  Board  wishes  to  clarify  that  the  scope  of  its  review  as  defined  in  the 
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 ratings for unfitting conditions will be reviewed in all cases.  The left leg, PTSD, and MDD 
conditions, as requested for consideration by the CI, meet the criteria prescribed in DoDI 6040.44 for 
Board purview.  The remaining conditions rated by the VA at separation and listed on the DA Form 294 
application  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 Board for Correction of Naval Records. 
 

VA (1 Mos. Pre -Separation) – All Effective Date 

Condition 

20050716 

Code 

Ratin

g 

Exam 

Related Cat II 

Lt Tibia Fx S/P ORIF w/ 
Medullary Nail 

8523-
5262 

20% 
* 

200610

25 

NO VA ENTRY (Subsumed under PTSD) 

PTSD 

9411 

100%

* 

200506
200506

22 
22 

 
RATING COMPARISON:   
 

Ratin

g 
10% 

Code 
5299-
5003 

Service IPEB – Dated 20050526 
Condition 
Lt Tibia Open IIIA 
Fracture 
Nerve Deficit to the 
Distribution of 
Superficial Peroneal 
& Deep Peroneal 
Cont Distributions 
Wound Closure S/P 
STSG 
MDD 
PTSD 

Cat III 
Cat III 

Related Cat II 

↓No Additional MEB/PEB Entries↓ 

0% X 0 / Not Service-Connected x 0 

Combined:  10% 

Combined:  100% 

*The initial VA rating was for 100% for stabilization and included PTSD, the left leg, knee and ankle as 
well as bilateral hearing loss.  The left leg was separated out as 20%, w/ code 8523-5262, and the PTSD, 
coded 9411, at 100% on the 20061103 VARD.  TBI was also added at 10% on this VARD.  Back pain and 
right knee pain were granted on the 20060404 VARD and tinnitus on the 20060725 VARD, each at 10%.  
Scars were added at 0% on the 20091229 VARD. 
 
 
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.    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  nor  for  conditions  determined  to  be  service-connected  by  the  Department  of 
Veteran  Affairs  (DVA)  but  not  determined  to  be  unfitting  by  the  PEB.    However  the  DVA,  operating 
under a different set of laws (Title 38, United States Code), is empowered to compensate all service-
connected  conditions  and to  periodically  re-evaluate  said  conditions  for the  purpose of  adjusting the 
Veteran’s disability rating should his degree of impairment vary over time.  The Board’s role is 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 severity at the time of separation.  The Board 
utilizes  DVA  evidence  proximal  to  separation  in  arriving  at  its  recommendations;  and,  DoDI  6040.44 
defines  a  12-month  interval  for  special  consideration  to  post-separation  evidence.    The  Board’s 
authority  as  defined  in  DoDI  6044.40,  however,  resides  in  evaluating  the  fairness  of  DES  fitness 
determinations and rating decisions for disability at the time of separation.  Post-separation evidence is 
probative only to the extent that it reasonably reflects the disability and fitness implications at the time 
of  separation.    The  Board  noted  the  post-separation,  elective  left  below  the  knee  amputation,  but 
emphasizes that its adjudication is limited to the disability present at separation.  The Board has neither 
the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the 
application regarding suspected DES improprieties in the processing of his case.   
 
Left Leg Condition.  On 7 March 2004, the CI suffered a penetrating injury to his left lower leg with open 
fractures  of  the  tibia  and  fibula  while  deployed  to  Iraq.    He  was  evacuated  to  his  home  station  via 
Landstuhl, receiving stabilization treatment en route including external fixation of the tibial fracture.  On 
19  March  2004,  he  had  an  intramedullary  nail  placed  in  the  left  tibia  with  removal  of  the  external 
fixator.  Later, some of the hardware was removed on 1 October 2004 as it was symptomatic.  He was 
initially  placed  on  LIMDU  status  18  August  2004  and  underwent  extensive  rehabilitation.    Despite 
improvement, he was not able to meet retention standards at the end of the LIMDU period and was 

   2                                                           PD1200256 
 

then  referred  to  MEB.    The  narrative  summary  (NARSUM)  was  dictated  by  the  orthopedics  staff  on 
17 March 2005, 4 months prior to separation.  The CI was still limited to 10 minutes on the exercise 
(bike) and 20-25 minutes of walking secondary to left knee, leg and ankle pain.  Walking also resulted in 
tingling in his leg and foot; the gait was antalgic.  Range-of-motion (ROM) of his hip was full.  His left 
knee flexion was 120 degrees with 140 degrees (VA normal) on the unaffected right knee.  Extension 
was zero degrees on the left (VA normal), but showed hyperextension of ten degrees on the right.  The 
ankle ROM was also reduced for the affected left side with 5 degrees dorsi flexion and 50 degrees of 
plantar flexion while the right side was ten and 60 degrees, respectively, with VA normal values of 20 
and 45 degrees.  The surgical scars and skin graft were well healed.  Sensation was decreased in the 
distribution of the superficial and deep peroneal nerves.  Peroneal strength was reduced to 4/5, but the 
extensor hallucis longus (EHL), posterior tibialis and anterior tibialis strength was normal indicating good 
motor  function  of  the  deep  and  superficial  peroneal  nerves.    His  X-rays  showed  a  healed  tibial  shaft 
fracture with a well-positioned intramedullary nail.  He was thought to have plateaued in his level of 
function.  The commander noted on 23 March 2005 that the CI was limited to administrative duties as 
he could not perform any of the more physically demanding tasks.   
 
The VA Compensation and Pension (C&P) examination was performed on 22 June 2005, 3 weeks prior to 
separation.  The CI reported left knee pain, weakness, sensory changes and restricted ankle motion.  He 
was riding a stationary bicycle for 15-20 minutes 3 to 4 times a week and could walk for 15-20 minutes.  
The ROM of the left knee was normal and the ligaments were stable without signs of meniscal injury.  
The ankle showed reduced dorsiflexion at 5 degrees with normal plantar flexion.  The examiner noted 
3+/5  strength  for  dorsiflexion,  inversion  and  eversion  consistent  with  “functional  group  XII  left  leg 
muscle deficit is moderately severe functional loss.”  Diminished sensation was also documented over 
the anterolateral wound, dorsum of the foot and into the second, third and fourth toes.  The X-rays of 
the knee and ankle were normal other than evidence of the intramedullary nail and a proximal fibular 
fracture.  The reduced ROM of the ankle was thought to be secondary to contracture of the Achilles 
tendon due to the prolonged immobilization.  Moderate to severe impairment from the muscle deficit 
and nerve involvement was diagnosed, but relative loss of function from each was not assigned.  On the 
general C&P examination that same day, the scars were noted to be “not dysfunctional”.  Significant loss 
of soft tissues was also documented.  Two months after separation the CI was working as a courier.  At 
an  orthopedic  pre-operative  exam  performed  on  28  December  2005,  a  little  over  5  months  after 
separation, the CI reported continued pain and desired hardware removal.  He had a slightly antalgic 
gait with persistent weakness and sensory loss.  The examiner wrote “Associated with this injury, he had 
near complete loss of his peroneals as well as most likely superficial peroneal nerve...”  The CI was able 
to stand on both heels, but was weaker on the left side.  He had 3/5 strength of his EHL and tibialis 
anterior muscles, contributing to the foot drop, a change from the prior to separation NARSUM, and 5/5 
strength in plantar flexions.   
 
The  NARSUM,  initial  VA  C&P  and  December  2005  pre-operative  examinations  were  all  performed  by 
orthopedic  surgeons.    Another  VA  C&P  examination  performed  on  22  March  2006,  8  months  after 
separation showed continued signs of muscle weakness and sensory loss with some loss of muscle bulk 
with  abnormal  gait.    He  walked  without  assistive  devices.    The  Board  directs  attention  to  its  rating 
recommendation based on the above evidence.  The PEB rated the left leg condition at 10% and coded it 
5299-5003, analogous to degenerative arthritis.  The deficit to the deep and superficial peroneal nerves 
and the skin graft were both determined to be Category II conditions, conditions which contribute to the 
unfitting condition but are not separately unfitting themselves.  As noted above, the VA initially awarded 
a  100%  disability  rating  for  the  leg,  PTSD  and  hearing  loss,  during  a  stabilization  period,  but  also 
determined  that  the  left  leg  condition  met  the  20%  or  greater  disability  requirement  for  vocational 
rehabilitation purposes.  Subsequently, the VA rated the left leg condition separately from the combined 
rating  in  the  3  November  2006  VA  rating  decision  and  rated  it  20%,  coded  8523-5262,  (incomplete) 
paralysis of the deep peroneal nerve and impairment of the tibia and fibula.  The VA rated the scars 
separately, but at 0%; the neuropathy was subsumed under the left leg condition using the combined 
code  8523-5262.    In  its  adjudication  of  the  left  leg  condition,  the  Board  considered  VASRD  §4.3, 
reasonable doubt, VASRD §4.14, avoidance of pyramiding, which prohibits the use of the same signs and 

   3                                                           PD1200256 
 

symptoms for multiple coding options and VASRD §4.56, evaluation of muscle disabilities.  The latter 
notes “an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of 
the  muscle  group  involved  unless,  for  locations  such  as  in  the  wrist  or  over  the  tibia,  evidence 
establishes  that  the  muscle  damage  is  minimal.”    No  examiner  noted  that  the  scars  interfered  with 
function and one specifically wrote “not dysfunctional.”  Sensory deficits were observed, but not linked 
to  an  impairment  in  the  wear  of  military  foot  wear  or  noted  to  be  separately  causal  in  functional 
impairment  by  any  examiner.    All  examiners  observed  a  loss  of  strength  in  some,  but  not  all,  of  the 
muscles innervated by the peroneal nerves in addition to the muscle loss and damage from the injury 
itself.    The  relative  contributions  of  the  nerve  and  muscle  conditions  were  not  separated  by  any 
examiner.    However,  the  strength  of  the  tibialis  anterior  and  EHL  were  noted  to  be  normal  by  the 
NARSUM examiner, consistent with an intact deep peroneal nerve motor function.  Soft tissue loss was 
documented  by  several  examiners,  including  one  note  that  the  peroneal  muscles,  supplied  by  the 
superficial  peroneal  nerve,  were  lost.    The  VA  C&P  orthopedic  examiner  for  the  22  June  2005 
examination  specifically  wrote  “functional  group  XII  left  leg  muscle  deficit  is  moderately  severe 
functional loss.”   
 
The  Board  considered  different  rating  options  for  the  ankle,  knee,  leg,  deep  and  superficial  peroneal 
nerves  and  the  muscle  groups.    No  combination  of  coding  options  provided  a  better  description  or 
higher rating advantage to the CI than 5312, impairment of muscle group XII.  The sensory impairment 
was not separately unfitting.  While the motor loss could be attributed to direct trauma to the muscles 
of the lower leg and/or possibly to damage to the peroneal nerve branches, the functional loss is the 
ratable disability.  This was not apportioned by any examiner and muscle loss is clearly documented.  
The limitations in ROM in the ankle and knee are not compensable and the X-rays for both were normal.  
The  description  for  moderately  severe  disability  of  muscles,  which  merits  a  20%  disability  rating, 
includes  a  description  as  “Through  and  through  or  deep  penetrating  wound…with  debridement…or 
intermuscular scarring,” a history of “hospitalization for a prolonged period for treatment of wound,” 
cardinal  signs  such  as  weakness  and  fatigability  with  evidence  of  inability  to  keep  up  with  work 
requirements.    Objective  findings  include  entrance  and  exit  scars,  indications  on  palpation  of  loss  of 
deep  fascia,  muscle  substance,  or  normal  firm  resistance  of  muscles  compared  with  sound  side,  and 
tests  of  strength  and  endurance  compared  with  sound  side  demonstrate  positive  evidence  of 
impairment.    For  severe  disability,  consistent  with  a  30%  disability  rating,  the  CI  had  the  additional 
history of open comminuted fracture with extensive debridement and sloughing of soft parts.  The CI 
also showed evidence of inability to keep up with work requirements.  Objective findings included loss 
of  muscle  substance.    Of  the  other  listed  possible  seven  signs  of  severe  disability,  only  visible  or 
measurable atrophy was present.  After due deliberation, considering all of the evidence and mindful of 
VASRD §4.3 (reasonable doubt), the Board determined that the description of severe disability best fit 
history of the injury and the functionality of the CI at separation.  It recommends a disability rating of 
30% for the left leg condition, coded 5312 for severe dysfunction of muscle group XII.   
 
Contended  PEB  Conditions.    The  contended  conditions  adjudicated  as  not  unfitting  by  the  PEB  were 
MDD and PTSD.  The two Category II conditions were discussed above with the left leg condition.  The 
Board’s  first  charge  with  respect  to  these  conditions  is  an  assessment  of  the  appropriateness  of  the 
PEB’s fitness adjudications.  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.  The CI was first evaluated in mental health in April 
2004 during his treatment for the left leg condition.  He was diagnosed with both PTSD and MDD, not 
otherwise  specified.    He  improved  with  medications  and  therapy,  but  some  symptoms  of  both 
conditions persisted.  Both conditions were listed by the MEB, but neither was listed on either LIMDU or 
implicated in the commander’s statement.  The CI was able to do administrative duties and only the 
physical limitations were cited by the commander.  Both conditions were reviewed by the action officer 
and  considered  by  the  Board.    There  was  no  indication  from  the  record  that  either  significantly 
interfered  with  satisfactory  duty  performance  after  he  had  been  treated.    He  was  thought  to  have 
moderate military impairment and mild social impairment from the PTSD as well as partial remission of 
the MDD.  Shortly after separation, the CI was able to find part-time work as a courier and planned to 

   4                                                           PD1200256 
 

attend college.  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  any  of  the  contended  conditions  and,  therefore,  no  additional  disability  ratings  can  be 
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.  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 leg condition, the Board unanimously recommends a disability rating of 30%, coded 
5312 IAW VASRD §4.73.  In the matter of the deep and superficial peroneal neuropathy condition and 
IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the 
matter of the wound closure with split thickness skin graft and scars condition, the Board unanimously 
recommends  no  change  in  the  PEB  adjudication.    In  the  matter  of  the  contended  MDD  and  PTSD 
conditions  and  IAW  VASRD  §4.130,  the  Board  unanimously  recommends  no  change  from  the  PEB 
determinations 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:   
 

VASRD CODE 

5312 

RATING 

30% 

UNFITTING CONDITION 

Lt Tibia Open IIIA Fracture 
Nerve Deficit to the Distribution of the Superficial and Deep Peroneal 
Cutaneous Distributions 
Wound Closure with use of S/P STSG 
Major Depressive Disorder 
Post-Traumatic Stress Disorder Chronic 

Cat II 
Cat II 
Cat III 
Cat III 

COMBINED 

30% 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120130, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 

 

             
           President 
           Physical Disability Board of Review 

   5                                                           PD1200256 
 

      
 

                COMMANDER, NAVY PERSONNEL COMMAND 
                                       

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS 
 
 
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS           
 
Ref:   (a) DoDI 6040.44 
          (b) PDBR ltr dtd 2 Nov 12   
          (c) PDBR ltr dtd 6 Nov 12   
          (d) PDBR ltr dtd 14 Nov 12   
                               
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of 
Review set forth in references (b) through (d). 
 
2.  The official records of the following individuals are to be corrected to reflect the stated 
disposition: 
 
    a.  former USMC:  Retroactive increase in disability rating from 30 percent to 50 percent for 
the period member was on the Temporary Disability Retired List with a final disability rating of 
10 percent effective 1 October 2001. 

    b. former USMC:  Disability retirement with a final disability rating of 30 percent and 
assignment to the Permanent Disability Retired List effective 15 July 2005. 

    c. former USMC:  Disability retirement with a final disability rating of 30 percent and 
assignment to the Permanent Disability Retired List effective 30 April 2007. 
 
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. 
 
 
 
 
 
 
 

   
  Assistant General Counsel 
    (Manpower & Reserve Affairs)  

 
 
 

 
 
 

 
 
 

 

 

 

 
 
 

 
 
 

   6                                                           PD1200256