RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02815
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071126

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Reserve E3, Combat Medic, medically separated for “left distal comminuted femur fracture” with a disability rating of 10%.

CI CONTENTION:  The applicant contends her disability processing was unfair and should have received a higher disability rating.  Her complete submission, with attachments, is at Exhibit A.   

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 - 20071101	VARD - 20080513	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left… Femur Fracture	5099-5003	10%	Spiral Fracture of Left Femur	5255	20%	20080211	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Left Femur Condition.  The service treatment records (STR) and the MEB narrative summary (NARSUM) documented a left comminuted (multiple fragments) distal femur fracture sustained from a fall in February 2007 (9 months pre-separation), which required open reduction and surgical pinning.  Post-operative X-rays confirmed good position.  Post-operative STR entries documented an uncomplicated recovery with improving range of motion (ROM) at the knee (hip not involved).  Although the NARSUM was dated 11 October 2007, the orthopedist referenced his examination of 24 August 2007 (3 months pre-separation), stating that at that time “she had achieved full extension of her knee and flexion to 100 degrees without discomfort ... [and] ... walked with a non-antalgic gait ... but was extremely not confident about the ability to run.”  Formal ROM measurements for the MEB by physical therapy were performed 3 weeks after that examination, and recorded knee flexion to 135 degrees (normal 140, 45 for minimum 10%) and extension minus 3 degrees (normal 0, minus 10 degrees for minimum 10%), specifying painful motion.  There was no outpatient STR evidence otherwise probative to rating or to gait or functional impairment; and, the NARSUM did not provide any additional probative evidence beyond that cited above.

A VA Compensation and Pension (C&P) examination was conducted 11 February 2008 (10 weeks post-separation) and there was no documentation of interim injury or other exacerbation of the condition.  The examiner noted pain rated 4/10 at rest with flares (2-3 weekly) to 8/10 precipitated by “weather, walking;” and, further stated that the CI no longer had the “strength and stamina” to return to her previous employment as a waitress.  The VA physical examination recorded an antalgic gait and use of a cane (with a conflicting entry in another section of the template), knee joint tenderness, and the absence of effusion or instability.  The VA measured ROM was normal in all planes for the hip, with knee flexion to 140 degrees and extension 0 degrees.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was based on the US Army Physical Disability Agency pain policy; but, was consistent with VASRD §4.71a criteria for the Service ROM evidence (conceding painful motion) and other ratable findings.  The VA’s 20% rating under code 5255 (femur, impairment of) was premised on “moderate” contiguous knee disability, and specifically cited the presence of an antalgic gait and use of assistive device.  Code 5255 also confers 10% for “slight” and 30% for “marked” contiguous hip or knee disability.   Other than consideration of analogous application of 5255 (specifying fracture complications of malunion or non-union which were not present), there is no pathway to a rating higher than 10% under any applicable code in VASRD §4.71a.  Members considered if a higher rating under 5299-5255 could be recommended.  It was noted, however, that the gait disturbance and requirement for a cane identified at the time of the C&P examination, a key factor in justifying a higher functional-based rating via 5255 as per the VA, suffered significantly in probative value given the conflicting evidence from the MEB orthopedist.  Although it was conceded that residual functional impairment with prolonged walking and running was present at separation, the overall clinical picture was a stable and surgically corrected femur fracture which would not be expected to result in long term moderate 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 of the left femur condition.

BOARD FINDINGS:  In the matter of the left femur condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.   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 20140609, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 AR20160007938 (PD201402815)

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 and hereby deny the individual's application.
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

 

Enclosure 

CF:
(  ) DoD PDBR 
( ) DVA