RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01392
BRANCH OF SERVICE:  MARINE CORPS 	BOARD DATE:  20150629
SEPARATION DATE:  20040630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Amphibious Assault Vehicle Crew Member) medically separated for right lower extremity condition (tibial pain).  The tibial pain could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  “Right tibial pain, s/p tibial shaft fracture, complicated by infection,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “right tibial pain, s/p tibial shaft fracture, complicated by infection” as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated. 

CI CONTENTION:  The CI requests a higher rating for his disability. The applicant’s complete submission is at Exhibit A.  

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 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 20040420	VA* - (~1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Tibial Pain, S/P Tibial Shaft Fx, Complicated By Infection	5099-5000	20%	Status Post Residual, Right Tibia Fracture With Residual Scar	5262	10%	20040527	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 11	
RATING:  20%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20040823 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Tibial Pain.  The narrative summary (NARSUM) noted the CI fractured his right tibia in February 2001 while playing soccer.  The fracture (fx) was treated by open reduction and internal fixation with intramedullary nailing and the course was complicated by infection.  Notes in the service treatment record (STR) indicated that the CI had significant swelling of the lower right leg which was thought to be due to inflammation and healing, and not infection.  Osteomyelitis was considered, but there was no evidence in the record that the CI was treated with antibiotics at this time.  The leg swelling lessened and at an orthopedic evaluation 6 September 2001, the CI reported no pain with walking and no knee pain, but slight calf pain.  Tibial X-rays showed a well healed fracture and the CI was found fit for duty.  The CI sought treatment a month later and reported swelling and soreness of the leg for 7 months.  On exam there was TTP and a large area of redness and swelling and X-rays were suspicious for bone infection.  The examiner noted a diagnosis (dx) of cellulitis and a rule out dx of osteomyelitis.  At a visit the next day for further evaluation the CI reported increased pain since he began running a few weeks earlier, with a significant fever 4 weeks earlier, and tenderness and swelling in the last 4 days.  Tibial X-rays noted a focal area of non-healing, but good fx healing otherwise.  The dx was “deep infection with osteomyelitis” and the CI was admitted for incision and drainage (I&D) and IV antibiotics.  The examiner indicated that hardware removal needed to be considered with the risk of re-fracture noted, and notes indicated the nail was removed and an external fixator (EF) was placed.  A follow-up visit 27 November 2001 noted the CI was full weight bearing without pain and there was no evidence of active infection, but an area of the leg wound was not healing.  The wound was closed by plastic surgery in early December and a later ID consult indicated there had been another episode of infection treated with antibiotics with improvement in late December 2001.  An operative report 24 January 2002 to remove all retained hardware noted the distal (closest to foot) EF pin sites were infected.  An infectious disease (ID) consult the same day recommended treatment with antibiotics for four to six weeks because of osteomyelitis concern.  An orthopedic evaluation 2 March 2002 noted the CI re-injured the right leg and had re-fractured the tibial shaft and the NARSUM and JDETS indicated that the bone was infected at the site of the fracture.  The fracture was non-displaced and in good alignment and the CI was placed in a cast.  A follow-up ID exam 3 April 2002 indicated the CI had completed an 8 week course of antibiotics.  There was no current evidence of infection with decreased swelling, and no further antibiotic treatment was recommended.  A second orthopedic opinion was obtained 4 June 2002 for nonunion of the tibial fracture.   The exam noted anterior angulation of the tibia of 7 degrees, without varus or valgus angulation.  Healing was noted on X-rays but there was a persistent visible fx line.  The scars were well healed.  There was no tenderness of the tibia and no instability noted.  Tibia X-rays noted evidence of healing with delayed union, with overall good alignment.  The specialist noted treatment could include surgical options, but recommended continued observation due to the risks of decreased activity level and/or recurrent infection.  At the third and final available follow-up with the second orthopedic opinion dated 30 July 2002, continued non-union of the fx was noted, but also continued slow healing on X-ray.  According to the NARSUM, following the re-fracture, multiple debridements were required and the CI had a plastic surgical procedure to cover the area (soleus muscle flap – posterior calf muscle brought around to cover the tibial defect) in November 2003.  The NARSUM noted that the CI had been immobilized for 13 months recovering from the fx and infection, and at the MEB examination the CI was “more than year out from any treatment.”  Treatment with medications did not adequately control the residual leg pain with activity and no further surgery was recommended.

At the MEB examination 18 February 2004, 4 months before separation, the CI reported pain at the fx site with running.  The MEB physical exam noted full ROM of the right knee and ankle.  The bone was noted to be “well-healed” with 8 degrees of anterior deformity (procurvatum) and 3 degrees of varus deformity.  
At the VA Compensation and Pension (C&P) examination 27 May 2004, 1 month before separation, the CI reported pain in the right leg, knee and ankle following multiple surgeries for the tibia fx.  The exam noted a mild limp favoring the right, without use of a cane or a crutch.  There was no swelling of the leg.  The right leg was noted to be shorter than the left (91 and 92.5 centimeters).  Right knee ROM was 90 degrees of flexion (normal 140), with painful motion noted.  There was no knee swelling, weakness, instability or evidence of cartilage damage.  Ankle ROM was full and exam was normal.  The examiner indicated there was evidence of malunion, with a bony prominence and TTP of the distal tibia, but no evidence of nonunion or active osteomyelitis.  Right knee and ankle X-rays showed no evidence of degenerative arthritis; tibial X-rays noted the healed fracture and post-surgical changes.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the right tibial condition 20% coded 5099-5000 (analogous to osteomyelitis).    The VA rated the tibial condition 20%, coded 5262 (impairment of the tibia) and rated the right knee 10% associated with the tibial fracture surgeries.  The Board considered the evidence in record established that the CI had osteomyelitis and malunion of his tibial fracture, with pain with weight bearing activities.  The PEB rated the leg status post fracture for osteomyelitis and the VA rated it for impairment of the tibia.  However, according to the VARSD, ratings for osteomyelitis of 30% or less are to be combined with ratings for limited motion, nonunion, malunion, or shortening. etcetera.  The Board deliberated if the conditions of tibial malunion status post fracture and osteomyelitis could be reasonably justified as separately unfitting conditions at separation.  The JDETS noted right tibial fracture with osteomyelitis and the NMA noted the CI could not perform his duties “due to improper healing of right tibia fracture with complications”, as did the NARSUM and the MEB Form 6100/1.  Members agreed that both conditions were reasonably justified as unfitting and noted that in this case VASRD §4.14 (avoidance of pyramiding) presents no conflict to providing two ratings, because the 5000 rating criteria depend solely on the activity of the infection and do not overlap with rating criteria for the residual tibial impairment.

The Board first considered a rating for the osteomyelitis of the tibia.  The 5000 rating criteria specify a 10% rating for osteomyelitis that is “inactive, with recurrent episodes, without evidence of active infection in the past five years” and 20% rating for osteomyelitis “with evidence of active infection within the past five years.”  VASRD notes for code 5000 state that “the 20% rating for activity in the past five years is not assignable for the initial infection, without subsequent reactivation.  The prerequisite for this historical rating is an established recurrent osteomyelitis.  To qualify for the 10% rating, 2 or more episodes following the initial infection are required.”  The Board engaged in lengthy deliberations regarding whether there was evidence in record of an initial infection of osteomyelitis and “subsequent reactivation”, and if so, how many recurrences.  The Board majority concluded the evidence in record established that the CI had a single protracted course of osteomyelitis, which eventually resolved following the removal of all surgical hardware, with no further episodes.  The Board majority determined that this did not meet the 10% or 20% rating criteria, and a 0% rating, coded 5099-5000 for the osteomyelitis condition was applicable at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 0% for the tibial osteomyelitis condition, coded 5099-5000.  

According to VASRD, as noted above, the osteomyelitis 5000 rating did not subsume disability due to leg pain or shortening, degenerative arthritis, limited knee or ankle motion, or tibial malunion and therefore the Board next considered rating of the leg for residual disability due to the tibia fracture with malunion.  There was no evidence in the STR or at the MEB examination of limited knee ROM, and the CI reported no knee or ankle pain, but at the pre-separation C&P exam, the CI reported pain of both the knee and ankle, with pain limited ROM of the knee, but normal ankle ROM.  The limited knee ROM at the C&P exam did not meet the threshold for a 10% rating, coded as 5260 (limited leg flexion), based on ROM alone, but a minimum 10% rating is achieved with consideration of §4.59 (Painful motion).  There was no evidence of arthritis noted on knee or ankle X-rays for rating as 5003.  The Board reviewed coding as 5262 (tibia impairment) to see if a higher rating was supported, and the Board majority agreed that the disability due to tibial malunion, with knee and ankle pain and an abnormal gait, but no use of a cane or crutch, was best described as moderate, and not severe, therefore meeting the criteria for a 20% rating and no higher.  The Board reviewed to see if a higher rating was supported with any other applicable code and noted that right leg was shorter than the left, but did not meet the threshold 10% rating coded as 5275 (lower extremity shortening) and there was no other impairment of the knee or ankle related to the tibia fracture to support a higher rating than 20%.  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 tibial malunion condition, coded 5262.  

The Board acknowledges that the majority rating recommendations provide a combined rating equivalent to that of the PEB, but the Board opined that providing a 20% rating coded according to 5000 rating criteria as the PEB did, but no rating for the tibial malunion, was not compliant with the VASRD as elaborated in the rating discussion.  

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 right tibial condition, the Board majority recommends a disability rating as follows: an unfitting tibial osteomyelitis condition rated 0%, coded 5000 and an unfitting tibial malunion condition, rated 20%, coded 5262, both IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Right Tibial Osteomyelitis Condition	5000	0%	
Right Tibial Malunion Condition	5262	20%	
COMBINED RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion:

The minority voter carefully considered the Board majority opinions.  However, the considerations summarized below led to the alternative minority rating recommendation as follows:

The CI developed osteomyelitis associated with a tibial fx, treated with ORIF as noted above.  The intramedullary nail was removed in October 2001 and at that time one culture was positive.  The CI completed a course of six weeks of antibiotics in late November 2001 and a follow-up clinic visit noted the CI was full weight bearing without pain.  There was a small area of the wound that was not fully healed, but there were no signs of infection.  At the time of plastic surgery closure in early December 2001, cultures of the wound were negative.  Notes indicated that in late December 2001, cellulitis around the EF pins developed and the remaining hardware was removed 24 January 2002 with incision and drainage of the pin sites noted.  The CI was placed on a long course of oral antibiotics (four to six weeks).  He re-fractured his tibia 2 March 2002 and according to the NARSUM, there was evidence of osteomyelitis through the fracture site and the CI remained on antibiotics which he completed on 27 March 2002 (eight weeks).  

The MO is that the CI’s osteomyelitis satisfied the 20% rating criteria of evidence of active infection in the last five years with reactivation based upon the evidence of two courses of antibiotics separated by a period of time with clinical absence of infection, followed by recurrent cellulitis and evidence of infection of the EF pins that were in contact with bone.  The MO acknowledges that this does not provide definitive evidence of whether the underlying bone infection resolved and was reactivated, or was present continuously between the two noted antibiotic courses, as held by the Board majority.  However, with resolution of reasonable doubt in favor of the CI, the MO is that the evidence should be considered as demonstrating reactivation of the infection.  Though the VASRD notes for 5000 clearly state the 10% rating for inactive osteomyelitis in the last five years is only applicable with evidence of two recurrences of active osteomyelitis (in addition to the initial infection), in the MO the notes for the 20% rating may be interpreted as the being satisfied by a single reactivation, if within the last five years.  The MO recommends a disability rating of 20% for the tibial osteomyelitis condition, coded 5099-5000 mindful of VASRD §4.3 (reasonable doubt).

The MO next considered the rating of the tibial malunion.  There was no evidence in the STR or at the MEB examination of limited knee ROM, and the CI reported no knee or ankle pain, but at the pre-separation C&P exam, the CI reported pain of both the knee and ankle, and pain limited ROM of the knee was documented, with normal ankle ROM.  The limited knee ROM at the C&P exam did not meet the threshold for a 10% rating coded as 5260 (limited leg flexion), based on ROM alone, but a minimum 10% rating is achieved with consideration of §4.59 (Painful motion).  There was no evidence of arthritis noted on knee or ankle X-rays for rating as 5003.  The Board reviewed coding as 5262 (tibia impairment) to see if a higher rating was supported.  The Board majority agreed that the disability due to the tibial malunion was appropriately characterized as moderate knee and/or ankle disability, but the MO is that the knee and /or ankle disability was due to pain and was best described as slight and not moderate, therefore meeting the criteria for a 10% rating and no higher.  The right leg was shorter than the left, but did not meet the threshold for a 10% rating coded as 5275 (lower extremity shortening).  The minority voter concluded that evidence supports a 10% rating for the mild tibial malunion and no higher.  The MO recommends a rating of 10% for the tibial malunion condition, coded 5262, mindful of VASRD §4.3 (reasonable doubt).

The MO 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	
Right Tibial Osteomyelitis Condition	5000	20%	
Right Tibial Malunion Condition	5262	10%	
COMBINED RATING	30%	

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 7 Dec 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:

- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USN  
- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USMC