RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01134
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20081030

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E3, Rifleman, medically separated for a right tibia fracture with a disability rating of 10%.  

CI CONTENTION:  Permanent pin in his right knee causes discomfort.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20080820	VARD - 20080108	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Open Distal Tibia Fracture	5299-5003	10%	Right Tibial Fracture…	5275	0%	20080108	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Right Tibial Fracture.  According to the service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s fracture condition began in May 2006 after sustaining a motorcycle accident.  The CI had immediate right tibia intramedullary nailing surgery, and developed ankle pain.  In March 2007 a prominent screw in the distal right tibia was removed and a subsequent bony exostosis was removed in April 2007.  

The 14 May 2008 MEB NARSUM examination, 5 months prior to separation, noted complaints of right knee and shin pain worsened with weightbearing, as well as a tender distal right tibial exostosis (recurred).  The physical examination showed a normal gait with normal right lower extremity strength.  There was some skin darkening and decreased sensation over the proximal lower leg.  The right knee had full range of motion (ROM) with no abnormalities.  There was tenderness over the proximal tibia and over a bony nodule in the anterior distal tibia.  Right ankle ROM was limited with “20% loss of dorsiflexion,” without painful motion.  

At the 8 January 2008 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported constant pain in the right knee and pre-tibia area, with weakness and stiffness on awakening.  The physical exam showed the CI ambulated well, had a steady gait with head slightly forward and “ever so slight limp favoring the right lower extremity.  Heel and toe walk and tandem walk were normal.  The right lower extremity was 1/4 inch shorter than the left.  There was subjective decreased sensation with intact reflexes, normal strength, and no atrophy.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right tibia fracture condition 10%, analogously coded 5299-5003 (degenerative arthritis).  The VA rated the right tibia fracture 0% coded 5275 (bones, of the lower extremity, shortening of), based on the VA C&P examination 3 months after separation, citing tibial fracture 1/4 inch shorter.  

There was no knee limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  The “20% loss of dorsiflexion” for the right ankle did not approximate a marked limitation of motion for any higher rating under code 5271 (ankle, limited motion of).  The leg length discrepancy of 1/4 inch would rate no higher than 0%.  There was insufficient evidence of “moderate” knee or ankle disability to warrant the next higher 20% rating under code 5262 (tibia and fibula, impairment of).  There is therefore no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any applicable code.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right open distal tibia fracture condition.  

BOARD FINDINGS:  In the matter of the right open distal tibia fracture condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150610, 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

      In accordance with reference (a), I have reviewed the cases listed below and 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:

		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
	 	- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC