RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2013-01627	
BRANCH OF SERVICE:  Army 	 BOARD DATE:  20150429
SEPARATION DATE:  20041104

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Petroleum Supply Specialist) medically separated for left distal femur pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  His physical profile did not authorize an alternate aerobic Army Physical Fitness Test (APFT) event.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The left leg condition, characterized as “left distal femur fracture status post (s/p) open reduction internal fixation (ORIF) with compartment fasciotomy of the left leg”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic pain, status post-operative (sic) fixation, fracture left distal femur, with fasciotomy for compartment syndrome”, as unfitting, rated 10% citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated. 

CI CONTENTION:  “Can’t work and take care of my Family due to leg, back, and I have Parkinson.”

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:  
   
Service  IPEB – Dated 20040809	VA  Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Status Post-Operative Fixation, Fracture Left Distal Femur, with Fasciotomy for Compartment Syndrome…	5099-5003	10%	Left Distal Femur Fracture Status Post Open Reduction Internal Fixation with Compartment Fasciotomy  of the Left Leg	5255	20%	STR	
Other x 0 (Not In Scope)	Other x 1 (Not in Scope)	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20040312 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

Left Distal Femur Fracture.  In June 2003, while deployed, the CI was involved in a motor vehicle accident (MVA) resulting in a distal left femur (thigh) fracture, compartment syndrome, and a tibia fracture.  Prior to medevac from theater, he underwent external fixation of the fracture and fasciotomy (surgery to relieve increasing pressure against muscles, nerves, and vessels) of the left leg.  In July 2003, further surgical debridement and internal fixation was accomplished.  In January 2004, a portion of surgically placed hardware was removed due to persistent pain and left knee stiffness.  X-rays revealed adequate healing by noting the presence of “abundant callous formation.”  Aggressive physical therapy (PT) did improve his lower extremity range of motion (ROM), but pain continued and an MEB was initiated.         

At the time of the MEB narrative summary (NARSUM) dated 27 July 2004, 3 months prior to separation), the CI’s primary complaint was persistent pain in the left thigh worsened with prolonged standing > 15 minutes, walking greater than three blocks, stair climbing and heavy lifting.  The pain was described as slight and frequent.  The physical exam (PE) revealed decreased left hip and knee ROM.  There was no comment in regards to the presence of painful motion.  Neurovascular and musculoskeletal parameters were normal.  The permanent profile listed “left femur fracture” as the sole diagnosis and the commander’s letter confirmed that the CI’s physical impairments prevented him from fulfilling the requirements of his military specialty.  At the VA Compensation and Pension (C&P) examination performed 5 February 2005, 3 months post separation, the CI endorsed increasing left knee pain.  His PE revealed left knee joint line tenderness, limited ROM associated with Deluca criteria, and ‘mild’ instability in the posterior drawer direction.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA chose different coding options for the hip/thigh condition with a rating of 10% and 20%, respectively.  The PEB’s analogous code of 5003 (degenerative arthritis) rested on application of the USAPDA pain policy.  The VA cited mal-union of the femur with moderate knee disability for its 20% rating.  Members first agreed that measured ROMs were non-compensable and that sufficient evidence of painful motion was present to justify the Service rating of 10%, as expressed by “tenderness upon pressure” IAW §4.59.  In regards to VASRD coding, all members agreed that the PEB’s analogous 5003 (degenerative arthritis) code was not the best identifier to the pathology present and that the VA’s code of 5255 (femur, impairment) was more appropriate.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that the CI’s overall resultant impairment was above “slight” and below “marked” and therefore corresponded to “moderate” at 20%.

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.  As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the left leg was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the left leg condition, the Board unanimously recommends a disability rating of 20%, coded 5255 IAW VASRD §4.71a.  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:  

UNFITTING CONDITION	VASRD CODE	RATING	
Fracture Left Femur, with Fasciotomy for Compartment Syndrome 	5255	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131015, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXX, AR20150012433 (PD201301627)

1.  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.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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						     

CF: 
(  ) DoD PDBR
(  ) DVA