RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00123	
BRANCH OF SERVICE:  MARINE CORPS	Separation Date:  20060430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Rifleman) medically separated for a left leg condition.  The left leg condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  “Closed fracture of unspecified part of lower end of femur” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded “type II (non-insulin dependent type) or unspecified type diabetes mellitus with ketoacidosis not stated as uncontrolled” for PEB adjudication.  The Informal PEB (IPEB) adjudicated “left femur open fracture” as unfitting, rated 20% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The diabetes mellitus was determined to be a Category III (conditions that are not separately unfitting and does not contribute to the unfitting condition).  Obesity was determined to be a Category IV (a condition which does not constitute a physical disability).  The CI requested PEB reconsideration.  The PEB Reconsideration affirmed the IPEB findings and rating and the CI was medically separated. 

CI CONTENTION:  He was not evaluated for his back pain or PTSD.  His complete submission is at Exhibit A. and 

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:  

Recon IPEB – Dated 20060112	VA* - (~6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Femur Open Fracture	5299-5255	20%	Residuals, Left Femur Fracture with Muscle Injury, Muscle Groups XIII and XV, and Traumatic Neuropathy, Sciatic and Femoral Nerves, also claimed as Knee Pain	5315-5313	40%	20061006	
			Scar, Left Medial Thigh	7804	10%	20061006	
Diabetes Mellitus	Category III	Diabetes Mellitus	7913	20%	20061030	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 3 	
RATING:  20%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20061214 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Left Femur Open Fracture.  The CI sustained an open comminuted fracture of the left femur with a thigh wound that extended to the groin as a result of a motor vehicle rollover accident while in Iraq in June 2004.  He was initially treated with the external fixation with subsequent internal fixation with an intramedullary rod.  A nerve conduction study (NCS) done in August 2004 demonstrated severe traumatic polyneuropathy which involved the sciatic and femoral nerves.  The CI underwent a course of physical therapy (PT), but continued to report left lower extremity pain and weakness.  On 16 June 2005, the CI underwent a third surgery to repair the nonunion of the femur fracture.  In August 2005, the Orthopedist documented some lateral knee pain with range-of-motion (ROM) limited to 120 degrees.  Physical therapy was continued postoperatively and the CI progressed from crutch ambulation to cane ambulation.  The MEB Narrative Summary (NARSUM) examination, approximately 6 months prior to separation, documented a large contracted scar, loss of muscle of the medial compartment in the thigh, loss of sensation on the medial leg and chronic pain in the area of injury.  The CI continued with intermittent use of a cane for ambulation.  The physical exam findings noted a wound approximately one foot long from the anterior thigh to the left groin; a muscle loss defect of a few centimeters in depth; full hip ROM and knee ROM of 3-130 degrees (normal 0-140 degrees) and decreased sensation distal to the wound on the medial left thigh.  A left femur X-ray showed an intact surgical nail and a scant callus in the anterior, posterior, medial, and lateral areas. The Orthopedist in December 2005 documented that the CI walked with a limp and required his cane much of the time.  The examiner noted resolving pain at the fracture site and continued lateral knee pain.  The physical examination noted a well-healed, contracted 20cm medial thigh wound with decreased sensation distal to the wound.  The hip ROM was limited on flexion with pain in the area of the medial thigh wound with resisted straight leg raise.

The VA Compensation and Pension (C&P) examination approximately 5 months after separation, documented residual impairments of numbness along the medial aspect of the left leg, foot and toes, limping gait and chronic pain in the posterior lateral aspect of the left knee.  The CI could only walk short distances and could not participate in any sports or other activities that could reinjure his leg.  The physical examination demonstrated an appreciable wound defect with indentation and adherence to the deeper structures.  The examiner noted that adductor muscles and medial hamstrings were absent.  The neuromuscular evaluation demonstrated decreased strength in the sciatic innervated muscles distal to the wound, numbness along the medial border of the foot attributed to cutaneous nerve injury and abnormal muscle strength in the everters, inverters, dorsiflexors and plantar flexors.  Walking in tiptoe posture resulted in intermittent giving out of the calf muscle.  The left knee ROM was limited to 90 degrees flexion (normal 140 degrees), slight excessive valgus alignment, and slight tenderness at the posterior border of the lateral femur condyle.  The left hip was limited to 90 degrees flexion (normal 125 degrees), 45 degrees external rotation, 0 degrees of internal rotation(normal 40degrees) and 25 degrees of abduction (normal 45 degrees).  The examiner opined that the muscle weakness was the main factor that added to the impairment which would have increased it to approximately 25%.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the unfitting open left femur fracture condition at 20%, coded 5299- 5255 (analogous to femur, impairment of).  The VA rated the left lower extremity condition (muscle injury and neuropathy) at 40% (severe muscle injury) coded 5315-5313 (Group XV Function and Group XIII Function).  The Board considered whether the evidence supported a rating higher 20%.  The Board noted that IAW VASRD §4.56(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.”

The service treatment record (STR) evidenced fatigue, lack of endurance and pain in the left leg from the muscle injury.  The CI walked with a limp and required the use of a cane for ambulation much of the time.  PT documented that the CI required a cane for ambulation due to limited left hip and knee ROM, tenderness to palpation at the lateral knee and quad strength limited to 4/5.  Despite extensive PT, there was modest improvement in knee flexion, however no gains in hip flexion.  Both the PEB and C&P exams documented loss of muscle of the medial compartment in the thigh, decreased strength in the sciatic innervated muscles distal to the wound and abnormal muscle strength.  If the CI attempted to walk in a tiptoe posture, the calf muscle gave out after a couple of steps.  After due deliberation, considering all of the evidence, the Board recommends a disability rating of 40% for the left femur open fracture condition coded 5315-5313 IAW §4.56 and §4.73.  

The Board then deliberated if the neuropathy was separately unfitting and ratable.  A Nerve Conduction Study in the left lower extremity demonstrated severe traumatic polyneuropathy which involved the sciatic and femoral nerves.  However, IAW §4.55 (Principles of combined ratings for muscle injuries) a muscle injury rating will not be combined with a peripheral nerve rating of the same body part unless the injuries affect entirely different functions, therefore an additional rating could not be recommended.  

Contended PEB Conditions.  The PEB adjudicated the Diabetes as a Category III condition (not separately unfitting and do not contribute to the unfitting condition).  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is preponderance of the evidence but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The CI was not given a LIMDU for the diabetes; nor was this condition implicated in the Commander’s Statement; and, the diabetes was not judged to fail retention standards.  This condition was reviewed and considered by the Board.  There was no indication from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation 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 diabetes and, therefore, no additional disability rating can be 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.  In the matter of the left femur open fracture, the Board unanimously recommends a disability rating of 40%, coded 5315-5313 IAW VASRD §4.73a.  In the matter of the left leg traumatic neuropathy condition, the Board unanimously agrees that it was unfitting; but, IAW VASRD §4.55 it cannot be rated.  In the matter of the contended diabetes mellitus condition, the Board unanimously recommends no change from the PEB determination of not unfitting.  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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Left Femur Open Fracture	5315-5313	40%	
RATING	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131229 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 2 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
      (c) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 30 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 20 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 20 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 40 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 30 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 40 percent disability rating (increased from 20 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     d. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 40 percent disability rating (increased from 20 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Temporary Disability Retired List for six months beginning the date of separation with a 50 percent disability followed by placement on the Permanent Disability
Retired List at the conclusion of six months with a final rating of 30 percent and entitlement to disability retired pay.

     g. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 30 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     h. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retired pay with a 40 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.
     
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.