RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03000
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150520
SEPARATION DATE:  20070729

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Stock Controller) medically separated for a right hip condition.  The 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).  The “closed fracture of intertrochanteric section of femur” and “other and unspecified injury to knee, leg, ankle, and foot,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “right intratrochanteric femur fracture status post TFN” as unfitting, rated 20%.  The remaining condition was determined to be Category II (related to the unfitting condition).  The CI made no appeals at that time, and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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:

IPEB – Dated 20070419	VA* - (~25 Mos. Post-Separation))	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Intratrochanteric Femur Fracture	5299-5262	20%	S/p Fracture Open Reduction …Fixation of Right Femur…	5255	30%	20090824	
Right LE Abductor Atrophy	Category II					
		Scar, Right Thigh...	7804	0%	20090824	
Other x 0 (Not In Scope)	Other x 1 (Not In Scope)	
RATING:  20%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20090924 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right femur fracture.  On 28 May 2006, this CI fractured his right hip in a motor vehicle accident.  He underwent open reduction and internal fixation.  A trochanteric fixation nail (TFN) was placed in his right femur.  After surgery, he was treated with LIMDU and physical therapy.  In January 2007, he attempted return to shipboard duty.  While his ship was at sea, he had significant difficulty with ladders and ambulation, even with moderate sea states.  After return to port, an MEB was initiated.  The MEB narrative summary was dictated on 23 February 2007.  On physical examination (PE), the CI’s gait was abnormal.  Focused PE of the right hip revealed full, painless passive range-of-motion (ROM).  Quadriceps strength was 4/5, and abductor strength was 3/5.  The examiner’s diagnoses were: 1.Right intratrochanteric femur fracture, status post (s/p) TFN, and 2.Right lower extremity hip abductor atrophy, due to injury.

After being separated from service, on 24 August 2009, he had a VA Compensation and Pension exam.  He was not on any medications at that time, and had not received any orthopedic treatment since leaving the Navy.  The CI reported that his right hip pain was constant.  About 2-3 times per week, the pain would flare-up and become worse.  Sometimes, during flare-ups he would use a cane.  On PE, he was in no acute distress.  He did not have any difficulty donning and doffing his shoes and socks, or getting on and off the examination table.  Heel and toe walk was normal.  He was able to stand on one foot at a time, without any loss of balance.  He was able to squat and rise without any difficulty.  He did not have any difficulty dressing or undressing.  PE of the thigh muscles showed no swelling, tenderness, deformity, inflammation, or atrophy.  Right hip ROM was measured, and is summarized in the chart below.

Right Hip (Thigh) ROM
(Degrees)	MEB ~5 mos. Pre-Sep
(20070223)	VA C&P ~25 mos. Post-Sep
(20090824)	
Flexion (125 Normal)	(not recorded)	90	
Extension (20)	(not recorded)	25	
External Rotation (45)	(not recorded)	45	
Abduction (45)	(not recorded)	50	
Adduction (45)	(not recorded)	30	
Comment	“full, painless PROM”	some pain with motion	

The Board carefully reviewed the data from the hip examinations described above.  The February 2007 MEB exam was closer to the DOS, and therefore had greater probative value.  At that exam, there was full, painless, passive ROM.  However, the CI’s gait was abnormal.  The Board determined that the hip disability was best described as “moderate.”  There was insufficient evidence to support describing it as “marked.”  IAW VASRD §4.71a (diagnostic code 5255), a rating of 20% is appropriate when there is moderate hip disability due to femoral impairment following femoral fracture.  After due deliberation, the Board determined that a disability rating of 20% for the right femur was appropriate.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a rating of 20% for the right femur condition (right intratrochanteric femur fracture, s/p TFN).  It meets criteria for the 20% rating level, due to moderate hip disability, following femoral fracture.

Other PEB Condition.  One condition (right lower extremity abductor atrophy) was adjudicated by the Navy PEB as Category II (related to the unfitting right femur condition).  The Board determined that the abductor atrophy was indeed related to the unfitting right femur condition, and IAW VASRD §4.14 (Avoidance of pyramiding), did not constitute a separately unfitting condition for disability rating purposes.  Therefore, it was appropriate for abductor atrophy to be considered as Category II.
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 intratrochanteric femur fracture, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB rating of 20%.  The Board did not agree with the diagnostic code chosen by the PEB.  However, based on precedent, if no rating change is recommended, the Board can accept an inaccurate or less-than-optimal diagnostic code.  In the matter of the right lower extremity abductor atrophy, the Board unanimously recommends no change from the PEB determination as Category II.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  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 20140512 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 Dec 15

      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:

- XXXXXXXXXXXXXXXXXXXX former USN  
- XXXXXXXXXXXXXXXXXXXX former USN 
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN

						  XXXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)