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AF | PDBR | CY2013 | PD-2013-01955
Original file (PD-2013-01955.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX     CASE: PD-2013-01955
BRANCH OF SERVICE: Army  BOARD DATE: 20150227
SEPARATION DATE: 20060131


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty 0-2 ( Infantry Officer) medically separated for upper extremity weakness. The condition 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 U3 profile and referred for a Medical Evaluation Board (MEB). The “open humerus fracture secondary to blast injury,” “chronic r/shoulder pain,” and “r/shoulder decreased range of motion” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “limitation and weakness of right upper extremity status post (s/p) IED blast fracturing the humerus” as unfitting, rated 20% “with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD)”. The CI made no appeals and was medically separated.


CI CONTENTION: “*Frequent pain in my back, neck right knee, left ankle, right shoulder, and upper right arm. *Limited mobility in my right arm. *Frequent insomnia due to pain in aforementioned areas and increased difficulty concentrating due to TBI.”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


 RATING COMPARISON :

IPEB – Dated 20051208
 VA* - (~8 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Limitation and Weakness Right Upper Extremity 5201 20% Right Shoulder Strain with Humerus Fracture S/P… 5201-5024 10% 20060929
Scar Right Shoulder 7804 10% 20060929
Other x 0 (Not In Scope)
 Other x 7 (Not In Scope)
RATING: 20%
 RATING: 30%
* Derived from VA Rating Decision (VA RD ) dated 200 70322 (most proximate to date of separation ( DOS ) ) .
ANALYSIS SUMMARY:

Limitation and Weakness Right Upper Extremity Condition. The service treatment record had no significant primary source documents during service; therefore, pertinent evidence was obtained from the MEB examination dated 22 September 2005 and the MEB narrative summary (NARSUM) dated 18 October 2005. The CI, who is right hand dominant, sustained a fracture of the right humerus on 11 January 2005 secondary to an improvised explosive device (IED) blast in - theater. He underwent irrigation and drainage (I&D) of the wounds both down range and in Germany and was subsequently transferred to the CONUS where he underwent a further I&D and closed reduction of the fracture on 14 January 2005 and an open reduction internal fixation of the humerus fracture on 16 January 2005. The CI indicated that he was hospitalized for 17 days, while the MEB examiner noted he was in the last hospital for 7 days. Post-operatively, he had physical therapy for approximately 3 months and occupational therapy and pain management thereafter. As a result of the injury, the CI complained of chronic right shoulder and arm pain , described as dull in nature. Pain increased to sharp with overhead activities, lifting weights, or strenuous activities. Furthermore, he reported intermittent numbness and tingling throughout the entire right upper extremity, a limited ROM secondary to pain, and trouble sleeping because of the pain. X-rays of the right humerus in June 2005 demonstrated good alignment of the humerus with no evidence of fracture remaining and the hardware was stable; and a bone scan in August 2005 was consistent with a healing fracture versus reactive changes with no evidence of osteomyelitis. Examination of the right uppe r extremity demonstrated a well- healed scar in the area of the brachium (upper arm from the shoulder to the elbow) and moderate tenderness in the mid portion. Motor strength was 4/5 with a full ROM at the elbow. The active shoulder ROMs were abduction 80 degrees (Normal 180 degrees), forward flexion 80 degrees (Normal 180 degrees), external rotation 45 degrees (Normal 90 degrees), and internal rotation to the second lumbar vertebra (90 degrees), while the passive ROMs were abduction 110 degrees and forward flexion 90 degrees. A permanent U3 profile was issued on 31 August 2005 for chronic right arm pain/loss of motion with limitation of all military functional activities, physical training testing, and no lifting, pushing, and climbing with the right arm. The commander’s statement on 21 September 2005 indicated that the “severity of his injuries prevented him from meeting the baseline standards expected of an infantry soldier.”

At the VA Compensation and Pension examination dated 29 September 2006, performed 8 months after separation, the CI reported pain the right arm and shoulder, which ached and was sharp and sticking in nature and was felt to be 5/10 in severity for the arm and 6/10 for the shoulder, which was exacerbated by physical activity and rolling on it. The CI was not taking any medication at the time of the examination and his functional impairment was a limited ROM. Examination revealed evidence of a muscle wound in the area of the right triceps with an overlying scar 20 cm x 0.5 cm and an exit wound scar at the right upper arm with moderate lowered endurance and no loss of muscle substance or tone, but with “strength” “graded a 4” (usually out of 5) for the muscle group right triceps. In response to a reviewer’s question about an exit wound, the examiner noted there was no shrapnel exit wound. The examiner noted “The muscle injury involves the right humerus;” and the humerus revealed findings of deformity with tenderness, but there were no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement or guarding of movement of the right shoulder. ROMs of the right shoulder were flexion 110 degrees, abduction 110 degrees, external rotation 80 degrees and internal rotation 90 degrees with no loss of motion on repetition. The right elbow examination was unremarkable. An X-ray series of the right shoulder and of the right humerus dated 29 September 2006 revealed post-surgical changes related to the prior fixation of a mid-humeral fracture with fixation screws in place along the mid-humeral diaphysis, which was healed with a periosteal reaction and there were metallic shrapnel fragments associated with the proximal humerus and adjacent soft tissues.

 The Board directed its attention to its rating recommendation based on the above evidence. The PEB assigned a 20% rating using code 5201 (Arm limitation of motion) for limitation and weakness of the right upper extremity s/p IED blast fracturing the humerus with an active ROM recorded at 90 degrees in its proceedings. The VA assigned a 10% rating using code 5201-5024 (Arm limitation of motion-Tenosynovitis) for right shoulder strain with humerus fracture status after surgery, but explained its rating in the VARD as painful or limited motion of a major joint or group of minor joints with wording from code 5003. In actuality, the active ROMs reported in the NARSUM were 80 degrees for both flexion and abduction while the CI was on still on active duty, but the VA ROM measurements performed 8 months after separation were each 30 degrees greater than the flexion and abduction reported by the MEB NARSUM. While the probative value of the PEB examination, which was closer to separation and was corroborated by the commander’s statement, appeared to be greater, both examinations based on ROM measurements were close to the shoulder level, which is rated at 20%. Other rating options based on codes for the fracture of the humerus that healed afforded no higher rating; and muscle injuries were considered. The CI’s moderately severe injury sustained from an IED blast warrants a 30% rating using code 5306 (triceps injury) IAW VASRD §4.73 and VASRD §4.56 (evaluation of muscle disabilities) which states:
(a) 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. (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. (c) For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.
The CI had an open fracture of the humerus that required several irrigations and debridements (I&Ds) prior to undergoing an open reduction and internal fixation to repair his fractured humerus. The operative reports were not available for review since their presence would have facilitated and clarified the true extent of the muscle damage proximate to the time of the injury. However, the record offers more than sufficient evidence to demonstrate a muscle injury occurred and persisted through the time of separation. Because there is some doubt as to the extent of the muscle injury, use of the severe code would be speculative. However, a through and through injury with muscle damage shall be evaluated as no less than a moderate injury. But the CI had more than a moderate injury, which occurs from a single bullet, small shell or shrapnel fragment. The CI had a blast injury and his findings are more consistent with a moderately severe disability of muscles, which is determined by:
(i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment.
The CI meets all of the criteria for a moderately severe disability of the triceps muscle, which is a stabilizer of the shoulder joint thereby accounting for at least a portion of his limitation of motion. He had a deep penetrating wound that fractured his humerus necessitating debridements, which were performed in - theater, in Germany and again prior to an ORIF of the humerus in the CONUS . According to the CI, he was hospitalized for a total of 17 days, which was followed by an extensive rehabilitation program. In spite of the surgeries and rehabilitation, he had loss of power, weakness, and limited motion of the shoulder compared to his uninjured arm, enough such that he could no longer serve as an infantry officer. There was clearly an entrance scar. While the VA examiner did not note any loss of deep fascia or muscle substance, the NARSUM examiner noted moderate tenderness of the mid brachium (from the shoulder to the elbow) of the arm. More importantly, the X-ray findings were incontrovertible that there were metallic shrapnel fragments in the soft tissue of the arm, which is sufficient evidence for an objective finding in a severe muscle disability and might account for his pain while sleeping. Furthermore, the VA examiner noted the CI’s strength was diminished and rated it a “4,” confirming the NARSUM examiner’s finding of diminished 4/5 strength even after extended rehabilitation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt) and VASRD §3.102 (Reasonable doubt), the Board recommends a disability rating of 30% for the limitation and weakness of the right upper extremity condition.


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 limitation and weakness of the right upper extremity condition, the Board unanimously recommends a disability rating of 30% coded 5306 IAW VASRD §4.73 and VASRD §4.56. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION VASRD CODE RATING
Limitation and Weakness Right Upper Extremity 5306 30%
COMBINED 30%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131029 w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record




XXXXXXXXXXXXXXX
President
Physical Disability Board of Review




SAMR-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 XXXXXXXXXXXXXXX , AR20150011199 (PD201301955)


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              XXXXXXXXXXXXXXX
                  Deputy Assistant Secretary of the Army
                   (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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