RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00016
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20070430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Organizational Automotive Mechanic, medically separated by the Reconsideration Physical Evaluation Board for persistent nonunion of right patella fracture, rated at 20%.  

CI CONTENTION:  His conditions continue to worsen and negatively impact his daily activities.  His 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 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 PEB - 20070208	VARD - 20070913  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Nonunion of Right Patella Fracture	5299-5262	20%	Status Post Right Knee Patellar Fracture and Surgical Repair	5260	0%	20070423	
			Right Leg Length Deformity	5275	0%	20070423	
Right Hip Fracture	Cat III	Status Right Hip Fracture and Open Reduction Internal Fixation (ORIF) Surgery	5252	0%	20070423	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Persistent Nonunion of Right Patellar Fracture.  The service treatment record (STR) and VA Compensation and Pension (C&P) exam documented a motorcycle accident in October 2005 that fractured his right hip and right patella, with open reduction and internal fixation (and hardware placement in both hip and knee).  At a visit with orthopedics in March 2006 (13 months pre-separation), the CI reported patellar pain.  The examiner documented an antalgic gait, with tenderness to palpation of the patella. There was “good” patellar mobility and a range-of-motion of 5-120 degrees (normal 0-140).  Strength was 4/5.  Radiologic imaging in February 2006 (14 months pre-separation) reviewed by the examiner documented a comminuted fracture of the patella with 7mm gap between fragments.  Due to concern for patellar nonunion, revision surgery with removal of patellar hardware was performed in May 2006 (11 months pre-separation).  At a post-operative visit 6 weeks later, radiographs obtained were reviewed by the examiner and showed good positioning of two screws with evidence of bony growth.  At a follow-up visit with orthopedics on 12 July 2006 (9 months pre-separation), the CI reported minimal knee pain and the ability to walk for up to an hour.  The examiner documented patellar crepitus and a range-of-motion of 0-120 degrees with normal strength on extension.  Radiographs obtained at that visit documented “patellar fragmentation,” and evidence for hardware failure.  

The MEB Narrative Summary (NARSUM) was completed on 15 July 2006 (9 months pre-separation).  The CI reported persistent knee pain and weakness with inability to stand for more than an hour, and pain with prolonged sitting.  The examiner documented crepitus and tenderness of the patella, with 5/5 thigh strength.  There was a mildly antalgic gait, with a knee 20 November 2006 (5 months pre-separation), the examiner documented a nontender, deformed patella with mild effusion.  Flexion was to 120 degrees (normal 140) and extension was lacking 20 degrees (normal 0).  Strength was decreased to 4/5 for extension, and flexion strength was normal.  A reconsideration NARSUM exam was performed on 22 January 2007 (3 months pre-separation).  The CI reported persistent knee pain that increases with activity.  The examiner documented “functional fibrous union” of the patella with extension lacking 2 degrees.  Radiographs in January 2007 documented 4 patellar fragments with 1 centimeter of separation between each fragment.  

At the VA C&P exam dated 23 April 2007 (1 week pre-separation), the CI reported last using a knee brace in January 2007.  He denied pain, swelling, stiffness, weakness, instability, giving way, locking, fatigue, lack of endurance of the knee.  The examiner documented crepitus, and edema of the soft tissues.  There was no evidence of effusion, guarding, instability, weakness, abnormal movement, spasm; there was no tenderness, no pain on motion or with resistance, and no pain on repeated movement.  Flexion and extension were normal.  There was no laxity, and no testing indicative of meniscal injury or instability.  Radiographic evaluation documented an “old, comminuted, unreduced fracture of the patella,” with some narrowing of the medial joint space.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the “right patellar fracture with persistent nonunion” as unfitting, and rated 20% analogously coded as 5299-5262 (malunion, with moderate knee disability).  The VA rated 0%, coded 5260 (leg, limitation of flexion).  The Board considered the evidence for a rating higher than 20%.  There was no evidence of knee ankylosis, or recurrent subluxation or lateral instability for a higher rating under 5256 and 5257.  There was no evidence of flexion limited to 15 degrees (5260) or extension limited to 20 degrees (5261) for a higher rating under those VASRD codes.  There was no clear evidence of nonunion with loose motion requiring a brace for higher rating under the analogous code 5299-5262.  At the time of separation, there was evidence of malunion.  The Board considered whether the disability documented in the STR was more representative of a moderate (20%) or marked (30%) disability rating.  The STR entries documented ROM measurements that improved to normal by the date of separation.  There was no evidence of painful motion, persistent weakness, recurrent locking or giving way, or significant effusions that would substantiate a more marked disability.  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 adjudication for the right knee condition.  

Contended PEB Condition.  

Right Hip Fracture.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right hip condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The right hip was also fractured in the motorcycle accident in October 2005 and was profiled along with the knee.  The commander’s non-medical assessment was nonspecific regarding limitations attributable to the hip.  At the time of the MEB NARSUM, reconsideration NARSUM and VA C&P exams (all pre-separation), there was normal or near normal hip ranges-of-motion with no evidence of painful motion.  There was no evidence of swelling, stiffness, weakness, instability, giving way, locking, fatigue, or lack of endurance of the hip, and no performance based evidence from the record that the hip condition significantly interfered with satisfactory duty performance.  It was not judged to fail retention standards and not forwarded by the MEB.  It was reviewed and considered by the Board.  After due deliberation and 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 contended hip condition and so no additional disability rating is 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 right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right hip condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  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 20131217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 2 Feb 16

      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 USMC 
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC   
- XXXXXXXXXXXXXXX, former USMC 

			XXXXXXXXXXXXXXX
	     		Assistant General Counsel
			(Manpower & Reserve Affairs)