RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01087
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070322

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Radio Operator Maintenance, medically separated for “chronic pain status post-operative fixation left subtrochanteric fracture and bilateral knees,” with a disability rating of 10%.

CI CONTENTION:  The CI made no specific contention.  The complete submission 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 based on 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 - 20070103	VARD - 20150513	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Status Post-Operative Fixation Left Sub-trochanteric Fracture and Bilateral Knees	5099-5003	10%	Leg Condition Left	5261	NSC	20150428	
			Hip Replacement	5254	NSC		
			Knee Condition Bilateral	5257	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Left Thigh and Bilateral Knee Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s left thigh and bilateral knee pain condition began on 1 February 2005, while deployed, after the accidental discharge of his personal weapon which resulted in a gunshot wound (GSW) to his left thigh with a fracture of the left femur below the hip (sub-trochanteric).  He underwent multiple surgical procedures over the next few weeks which began in theater shortly after the GSW and continued both en route in Germany and back at his home station.  Following the final procedure on 11 February 2005, he began rehabilitation.  He showed steady improvement both on clinical examination and on serial X-rays over the next year.  On 15 December 2005, in an orthopedic follow up examination, the wound was well healed with tenderness.  The hip showed full range of motion (ROM) and the gait was normal.  The CI reported pain with running, but it subsided after the first ¼ mile.  Walking was pain free.  In primary care on 7 February 2006, it was noted he progressed far better than expected, but continued to have pain and was not able to return to full duty over 1 year after the initial injury.  On examination, he favored the left leg and had a mild limp.  Mild quadriceps atrophy was present.  An MEB was then initiated.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 21 February 2006, 12 months after the surgical interventions and 13 months prior to separation, the CI was noted to have multiple (surgical) scars and decreased ROM of the left femur (thigh bone).  The orthopedic addendum to the NARSUM was dated 27 April 2006, 11 months prior to separation.  The CI reported ongoing pain in the left hip and both knees.  The ROM was reduced to 92 degrees flexion, 30 degrees of abduction, 10 degrees internal rotation, and 40 degrees of external rotation.  Adduction and extension were not recorded.  Motion was noted to be painful.  The CI also reported bilateral knee pain and popping.  The Board noted this was the first entry specific for the knees following the GSW in evidence.  The pain was greater on the left, but similar otherwise bilaterally.  On examination, patellar entrapment (a restriction in mobility, sometimes seen after trauma) was noted bilaterally.  The ROM was reduced at 120 degrees flexion on the left (normal 140) and 136 degrees on the right.  Pain with compression was noted but painful motion was not.  A maneuver to test for meniscal injury was present on the left, but not the right.  Meniscal disease was not diagnosed though.  The knees were stable.  X-rays of the knees were not in evidence nor were they cited in the NARSUM.  The MEB NARSUM examination was dated 27 November 2006, 4 months prior to separation, noted complaints of constant pain of the left hip, thigh, and both knees which increased with activity or staying in one position too long.  On examination, X-rays showed the fracture was well healed and the surgical hardware in place.  The neurovascular examination was normal other than decreased strength attributed to pain.  The ROM from the orthopedic evaluation (above) was cited.  No comment was made on the gait.  

The MEB forwarded “left thigh pain, status post open reduction internal fixation” and “bilateral knee pain, patellofemoral in nature” for PEB adjudication.  In a rebuttal to the PEB, dated 18 January 2007, the CI noted he could not sit “Indian style” or in tall chairs and he used either a cane or motorized cart for prolonged walking.  He requested he be rated at 20% vice 10%.  Good alignment of the fracture fragments was noted on an X-ray in March 2005.  This was stable on serial X-rays over the next 9 months including the final X-ray in evidence for the hip and femur which was dated 15 December 2005.  

The initial VA Compensation and Pension (C&P) evaluation was not performed until 28 April 2015, over 8 years after separation, well outside the 12 month after separation window assigned high probative value.  The CI reported ongoing pain which precluded running, but did not impact his ability to walk.  He did not use an assistive device and had not required regular care for the leg since separation.  The hip was not specifically examined.  The examination of the knees showed full ROM.  Pain was not present with weight bearing, but was noted to be present on the ROM testing without functional loss.  The knees were stable, crepitus absent, and strength normal.  Atrophy was absent as were signs of meniscal disease.  The X-rays were normal.  The Board noted that these are the only knee X-rays in evidence.  

The Board directed attention to its rating recommendation based on the above evidence.  The informal PEB (IPEB) combined the hip and knee conditions and rated the CI at 10%, coded 5099-5003, using the US Army Physical Disability Agency pain policy which has since been rescinded.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases; however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself.  Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting and there was no need for separate fitness adjudications rather than a judgment that each condition was independently unfitting.  Thus, the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.  

The evidence shows the primary injury was to the left hip and the CI underwent multiple surgical procedures with the placement of hardware.  Motion was reduced and painful.  The Board determined the evidence clearly shows the left hip was unfitting when severed from the bilateral knee pain condition.  It then considered the appropriate rating.  Painful and limited motion was present, but the recorded limitation in motion was not compensable.  The VA did not service connect the left thigh/hip and bilateral knee pain condition based on the VA C&P examination 8 years after separation.  The Board considered the evidence.  The recorded limitation in motion was not compensable.  The CI reported difficulty sitting “Indian style”, but did not comment on difficulty crossing his legs implying no or little impairment.  The Board then considered the code 5255, impairment of the femur.  The fracture had healed and was anatomically in good position on serial X-rays.  A malunion was not present, but hardware was and the CI had sustained a significant injury.  The use of an analogous 5255 code is supported by the evidence.  The Board then considered the level of impairment.  The gait, when recorded, was normal and then showed a slight limp; however the gait was last recorded over 1 year prior to separation.  The CI reported the use of a cane or motorized cart for prolonged walking in his rebuttal implying that he did not need an assistive device otherwise.  The Board determined this was best described as a moderate level of disability and a 20% rating was supported.  The Board also noted this was the rating for which the CI contended in the rebuttal to the PEB.  

The Board then considered if the knees were separately unfitting when decoupled from the left hip and thigh condition.  The CI was found to be unfit for chronic pain of the left sub-trochanteric fracture and bilateral knees.  A specific knee condition was not cited.  He was noted to have bilateral knee pain which was patello-femoral in nature.  Left and right knee pain was noted on the profile, but not specifically commented upon by the commander.  The MEB noted bilateral knee pain, patello-femoral in nature.  A review of the records did not show the CI sought medical care for the knees specifically and it was not recorded until the 27 April 2006 NARSUM while in the MEB process.  The Board found no evidence the knees had been treated independently of the left femur condition in the records available for review.  X-rays were not done for the knees until the VA C&P examination remote from separation which showed an essentially normal examination other than some pain noted on the examination.  Knee pain is a symptom, not a diagnosis.  The evidence does not support a finding of a separately unfitting knee condition of either knee.  The Board also noted the code 5255 is for a disability of the knee or hip and; therefore, is inclusive of the knee pain.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic pain status post-operative fixation left sub-trochanteric fracture and bilateral knees condition, coded 5299-5255.  

BOARD FINDINGS:  In the matter of the chronic pain status post-operative fixation left sub-trochanteric fracture and bilateral knees condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5255 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Pain Status Post-Operative Fixation Left Sub-trochanteric Fracture and Bilateral Knees	5299-5255	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170011647, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure