RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01568
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080610

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Human Resources Specialist) medically separated for a left jaw pain condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “nonunion status post left mandibular fracture” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB. The Informal PEB adjudicated “comminuted fracture of the angle of the left mandible …” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  CI believes that he was not evaluated for conditions that were related to his unfitting condition and that his unfitting condition was given an incorrect VARSD code.  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 Military 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 20080211	VA* - (~1 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Comminuted Fracture of the angle of the Left Mandible	9904	10%	Status Post Left Mandibular Fracture	9903	30%	20080506	
			Painful Scar	7800	10%		
			Neuritis of Cranial Nerve VII	8307	10%		
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20080709 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Comminuted Fracture of the Angle of the Left Mandible Condition.  The narrative summary and record documented the CI had a traumatic left mandible (lower jaw bone) fracture in September 2005.  The CI underwent five corrective surgeries complicated by infection and eventual nonunion of the left mandible.  At the MEB exam, the CI reported left sided jaw pain “increased with relaxing the jaw, lying on the left side of the face, wearing the Kevlar helmet, protective mask and doing any impact activities.”  The CI declined a sixth surgery.  The MEB physical exam performed 9 months before separation noted well healed scars along the left jawline and upper neck.  There was fullness to the left side of the face with deviation of the mouth to the right on opening.  “There was full active range-of-motion of the mandible bilaterally with pain at end range of opening on the left side with tenderness to palpation over the left temporomandibular joint and the angle of the left mandible.  Unable to fully palpate body of left mandible for defects due to increased guarding.”  Radiographs (CT) documented a gaping defect in the body of the left mandible.  The diagnosis was “nonunion status post left mandibular fracture.”  

At the VA Compensation and Pension exam performed a month before separation, the CI reported a similar injury and surgical history with symptoms of difficulty chewing, limited mouth opening and movement, swelling, pain, paresthesia (abnormal sensations), difficulty sleeping and remaining hardware where they wired his jaw shut.  The examiner documented nonunion of the mandible with severe loss of masticatory function and motion.  There was loss of all or part of the ramus on the left side without involvement of the temporomandibular articulation (TMJ).  The inter-incisal motion was within a range of 11 to 20 mm (mouth vertical opening) with pain and lateral excursion was over 4 mm on each side.  TMJ function was smooth “in the small amount that it moves.”  There was decrease sensation to pinprick in the left face which was diagnosed as neuritis of the left cranial nerve(s) VII (facial).  Panoramic X-ray documented nonunion of the left angle of the mandible, and the examiner stated “it appears that a great deal of the mandible has resorbed and now it looks misshapen and lacking any strength.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left mandible condition at 10% coded 9904 (mandible, malunion of) at “moderate displacement.”  The VA rated the left mandible condition at 30% coded 9903 (mandible, nonunion of) at “severe displacement.”  Notes for both disability codes indicate “dependent upon degree of motion and relative loss of masticatory function.”  Radiographs and clinical notes documented a nonunion of the left mandible rather than a “bad” bone rejoining (malunion) and disability code 9903 was considered predominate.  The VA exam was closer to separation and had a more detailed assessment of the ratable exam elements of the mandibular nonunion.  The VA exam was adjudged to have the highest probative value for rating at separation.  The examiner clearly indicated nonunion of the mandible with severe loss of masticatory function and motion meeting the 30% rating criteria under disability code 9903.  The Board considered alternative rating under code 9905 (temporomandibular articulation, limited motion), but it provided no avenue to higher or additional rating.  There was not loss of approximately one-half of the mandible for alternative rating using code 9902 (mandible, loss of approximately one-half).  

The Board next assessed if there were an unfitting and ratable scar or neurologic deficit as awarded by the VA (7800 scar and 8307 nerve).  The facial and neck scars were not tender, although they had a characteristic of disfigurement (asymmetry of the cheek).  Any contribution of the scars to mandibular function was considered under rating the mandibular nonunion above.  The PEB included “left sided V3 anesthesia” (Cranial Nerve V; trigeminal; mandibular division) in their disability description while the VA documented loss of sensation (neuritis) over the left CN VII (facial nerve).  There was no motor component (paralysis), no significant impairment of speech, or hypersensitivity which may have contributed to the CI’s inability to perform his duties or wear a mask or chin strap.  The Board concluded therefore that these conditions did not have any significant duty limiting component and therefore they could not be recommended for additional disability ratings.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the left mandible condition.  

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 left mandible condition, the Board unanimously recommends a disability rating of 30%, coded 9903 IAW VASRD §4.150.  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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Comminuted Fracture of the Angle of the Left Mandible…Discontinuity Defect…	9903	30%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140402, 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 XXXXXXXXXXXXXXXXXX, AR0160003205 (PD201401568)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA