Search Decisions

Decision Text

AF | PDBR | CY2013 | PD-2013-02642
Original file (PD-2013-02642.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2013-02642
BRANCH OF SERVICE: NAVY  BOARD DATE: 20141209
SEPARATION DATE: 20050214


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SN/E-3 (Storekeeper) medically separated for left leg and hip conditions. The conditions could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The MEB forwarded “pelvic ring fracture,” “left femur fracture,” and “left acetabular fracture,” the following conditions to the Physical Evaluation Board (PEB). No other conditions were submitted by the MEB. The Informal PEB adjudicated “pelvic ring fracture” and “left femur fracture,” conditions, rated at 10% and 10% respectively. The “left acetabular fracture,” condition was determined to be Category II condition. The CI made no appeals and was medically separated.


CI CONTENTION: “It should be changed because my left leg cost me loosing many jobs which are required standing and that is why I (sic) am still driving taxi because i can't do any job if it requires more than one hour standing. Because of this and the severe pain in my leg i (sic) am still experiencing, the rating should be changed.”


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 (with related Category II condition) and left hip conditions 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 Naval Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him, but must emphasize that the Disability Evaluation System 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, operating under a different set of laws. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20041110
 VA (21 Mo. Post-Separation)*
Condition
 Code Rating Condition Code Rating Exam
Pelvic Ring Fracture 5299-5003 10% Residuals, Pelvic Ring, Left Acetabulum ... Fractures 5236-5252 0% 20061114
Left Acetabular Fracture Cat II (a/w below)
Left Femur Fracture 5299-5255 10% Residuals, Left Femur Fracture 5255 10%* 20061114
Other x 0 (not in scope)
 Combined: 10%
Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 20070308 ( following the most proximate VA exam to date of separation )
Original VARD dated 20051019 conferred 0% ratings for both conditions based on Service records and citing failure to respond to VA correspondence. Charted ratings based on earliest VA exam and retroeffective to DOS.


ANALYSIS SUMMARY: The Board notes the earliest VA evaluation was nearly 2 years after the DOS. DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation. Therefore the evidence from the record was assigned the more determinant probative value with respect to the Board’s recommendations. It is clarified that, although the PEB adjudicated separate conditions, the clinical and disability features of this case are coalesced such that a single narrative for the evidence and analysis is the most practical presentation.

Left Pelvis/Femur (Hip) Condition. The service treatment record (STR) corroborates the narrative summary (NARSUM) account of a motor vehicle accident on 26 November 2003 resulting in a pelvic ring fracture (left pubic rami, right sacral ala), a left acetabular fracture (socket of hip joint) and a displaced proximal left femur fracture (near the hip). The femur fracture required surgical rod fixation and the remaining fractures were non-surgical. Good alignment and fracture healing were demonstrated by various X-rays over the ensuing clinical course. The CI responded favorably over a 6-month course of rehabilitation, with restoration of full weight bearing and activity; but, plateaued thereafter with persistent pain and limitations resulting in MEB referral. There are STR entries approaching separation which document a normal gait, full strength, left hip flexion from 100-110 degrees (normal 125 degrees) and abduction to 45 degrees (normal). An STR entry (following a fall) from January 2004 (a month prior to separation) confirms a normal gait, 5/5 strength, flexion of 115-120 degrees and a stable pelvis.

The NARSUM on 28 July 2004 (performed 7 months prior to separation) noted continued pain (severity not specified) with “no further improvement;” and, commented “although ... full weight bearing, unable to tolerate any heavy labor, unable to easily tolerate side-to-side motions, and also unable to advance his activity to include running or regular physical training.” The physical examination noted normal wound healing, the absence of tenderness, and “full range-of-motion [ROM]” of the hip. The commander’s non-medical assessment indicated that the CI “is capable of performing his assigned duties;” but, unable to perform “in-rate duties,” citing “no heavy lifting, no prolonged walking, no prolonged standing and no physical training.” The temporally remote VA Compensation and Pension examination (21 months post-separation) noted frequent pain elicited by “walking short distances,” a normal gait, normal exam findings of the hip and femur and measured normal hip ROM in all planes.

The Board directed attention to its rating recommendations based on the above evidence. It is first noted that it is difficult to assign separate ratings for such closely related conditions resulting in conjoint disability and limitations, taking into account the proscriptions of VA Schedule for Rating Disabilities (VASRD) §4.14 (avoidance of pyramiding). The PEB’s 10% rating for the pelvic fracture was analogous to 5003 (degenerative arthritis), and can be defended by painful motion (presumptive) or by VASRD §4.40 (functional loss). The latter, however, are attributable to the hip joint; and, the PEB’s Category II association of the acetabular fracture (accounting for the hip impairment) was linked to the femur condition. It is noted, however, that the VA subsumed the acetabular fracture with the hip rating. There is no ROM impairment in evidence for the hip which would justify a compensable rating based solely on limitation of motion (codes 5251, 5252, and 5253), nor is there any other applicable code available under VASRD §4.71a which would provide a rating independent of painful motion, functional loss, or overall impairment. Both the PEB and VA rated the femur condition analogously under 5255 (femur, impairment of). In the absence of fracture complications (nonunion, malunion, loose motion), code 5255 allows for analogous rating of hip disability as follows: 10% for “slight,” 20% for “moderate” and 30% for “marked.” Subsuming the acetabular fracture as it did, the PEB’s compensable rating is justified and, omitting the acetabular fracture as it did, the VA’s 0% rating is understandable. Members agreed that, although the “moderate” 20% rating could be entertained; it could not be justified without a pyramiding conflict with the 10% pelvic rating. An alternate approach of subsuming all conditions under code 5255 based rating (or simply dropping the pelvic rating to 0%) was entertained; which would allow consideration of a 30% rating under 5255 for “marked” hip disability. Members agreed, however, that the fairly functional disability picture at separation would not reasonably justify a conclusion that there was (even overall) marked hip impairment. 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 adjudications of the left pelvic and femur (hip) conditions.


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 pelvic fracture condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the left femur/acetabular fracture condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. 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.
The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131209, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record






                          
XXXXXXXXXXXXXX
President
DoD 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 22 Apr 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, 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:
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN


                                                      XXXXXXXXXXXXXXX
                                            Assistant General Counsel
                  (Manpower & Reserve Affairs)

Similar Decisions

  • AF | PDBR | CY2012 | PD2012 00718

    Original file (PD2012 00718.rtf) Auto-classification: Denied

    The InformalPEB (IPEB) adjudicated the left hip pain as unfitting, rated 10%, with cited application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).The remaining (right) leg pain condition was determined to be CategoryII (conditions that contribute to the unfitting condition).The CI made no appeals and was medically separatedwith a 10% disability rating. Under any appropriate VASRD code, the disability evaluation would result in a 10% rating as granted by the PEB. ...

  • AF | PDBR | CY2014 | PD-2014-02473

    Original file (PD-2014-02473.rtf) Auto-classification: Denied

    Left hip. Post-Separation) ConditionCodeRatingConditionCodeRatingExam Left Hip Pain5299-525510%Residuals, Left Femoral Neck Fracture525520%20090504Other x 0 (Not In Scope)Other x 8 RATING 10%RATING: 30% *Derived from VA Rating Decision (VARD)dated 20090731(most proximate to date of separation (DOS)). Left Hip Pain.

  • AF | PDBR | CY2014 | PD-2014-01236

    Original file (PD-2014-01236.rtf) Auto-classification: Denied

    On 10 June 2009, the CI underwent a separation physical examination that recorded constant hip pain as the only clinical finding. The examiner noted radiographs of the pelvis on 2 June 2009 demonstrated elements consistent with a healing stress fracture of the right femoral neck. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.

  • AF | PDBR | CY2012 | PD2012-00073

    Original file (PD2012-00073.docx) Auto-classification: Denied

    The PEB adjudicated the left hip/pelvic pain condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). Left Hip/Pelvic Pain Condition . ; Left hip pain limited; Right without pain; negative DeLuca§4.71a Rating10%*10%*At the MEB exam, the CI reported left hip area pain that was usually tolerable unless exacerbated by activity.

  • AF | PDBR | CY2013 | PD-2013-02657

    Original file (PD-2013-02657.rtf) Auto-classification: Denied

    The condition“status post left femoral neck open reduction internal fixation [ORIF]” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.The Informal PEBadjudicated “chronic pain, left hip”as unfitting, rated 20%,referencing the US Army Physical Disability Agency (USAPDA) pain policy.The CI made no appeals and was medically separated. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available...

  • AF | PDBR | CY2012 | PD2012 01579

    Original file (PD2012 01579.rtf) Auto-classification: Denied

    His fracture healed but he had pain in his left femur and his left hip at the bone graft site. **Limited extension.The Board directs attention to its rating recommendationbased on the above evidence.The PEB rated the chronic pain left femur fracture condition at 10% using an analogous 5003 code (degenerative arthritis) based on the USAPDA pain policy.The VA separately rated the left lower extremity for twoinjuries: 5262 (impairment of tibia and fibula) and 5257 (knee, other impairment of)...

  • AF | PDBR | CY2013 | PD 2013 01220

    Original file (PD 2013 01220.rtf) Auto-classification: Approved

    The hip condition, characterized as “right hip pain secondary to femoral neck stress fracture,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, with no other conditions submitted by the MEB.The PEB adjudicated “chronic right hip pain…”as unfitting, rated 0%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.The CI made no appeals and was medically separated. All hip exams in evidence proximate to separation indicated pain with motion,...

  • AF | PDBR | CY2012 | PD2012 01638

    Original file (PD2012 01638.rtf) Auto-classification: Approved

    The Informal PEB adjudicated chronic right hip painas unfitting, rated 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.The remaining conditions were determined to be not unfitting.The CI made no appeals, and was medically separatedwith a10%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...

  • AF | PDBR | CY2014 | PD-2014-02079

    Original file (PD-2014-02079.rtf) Auto-classification: Denied

    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 examiner noted X-rays of both hips performed on 12 August 2009 were normal.At the VA Compensation and Pension (C&P) examination on 29 October 2009, 9 months after separation, there was full ROM of both hips with...

  • AF | PDBR | CY2013 | PD-2013-01204

    Original file (PD-2013-01204.rtf) Auto-classification: Denied

    The record contains well documented evidence of significant left thigh muscle injury with an open, comminuted femur fracture that required ORIF and subsequent bone grafting. 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: DoD Physical Disability Board of Review