RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01605
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20020715

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Aerospace Ground Equipment Journeyman, medically separated for “fracture right distal tibia/fibula and mild foot fracture status post open reduction internal fixation with residual pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI contended for his leg/foot condition in addition to the following conditions:  arthritis, anxiety, sleep apnea, right and left shoulders.  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 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 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 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 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 - 20020513	VARD - 20060228	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fracture Right Distal Tibia/Fibula and Mild Foot Fracture…	8723	10%	Postoperative Residuals, Right Distal Tibia and Fibula Fracture with Ipsilateral Fracture Dislocation of Mid Foot	5262	0%	20060206	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Right Lower Leg fractures.  As noted above, the PEB combined two different anatomic injury conditions under a single disability rating code.  This approach by the PEB not uncommonly reflects its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining two conditions (leg and foot) under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the Disability Evaluation System or be found unfit because of a physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  To that end, the evidence for the right lower leg and right foot condition is presented; with attendant recommendations regarding separate unfitness, and separate ratings if indicated.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right lower extremity condition began in July 2000 after being struck by a motor vehicle.  Initial X-rays revealed fractures in the lower aspect of the right tibia and fibula (nearest to the ankle) as well as in the 2nd, 3rd, 4th, and 5th metatarsal bones in the right foot.  The CI underwent numerous orthopedic-centered surgeries to include hardware insertion and removal, as well as long bone compression enhancement.  Despite surgery and post-operative physical therapy (PT), the CI did not improve sufficiently to allow unrestricted duty.  The MEB forwarded “healed distal tibia and mid-foot fracture; residual functional impairment” for PEB adjudication.  At an orthopedic examination on 19 November 2001, 8 months prior to separation, the CI’s ankle range of motion (ROM) was documented as 10 degrees dorsiflexion (normal = 20) and 30 degrees plantar flexion (normal = 45).  

At the MEB NARSUM examination on 9 April 2002, 3 months prior to separation, the CI complained of some discomfort about his lower right leg which limited his weight bearing to 30 minutes at a time.  His physical examination (PE) revealed “minimal” and “mild” tenderness about his lower right extremity.  His right ankle ROM was decreased at 5 degrees of dorsiflexion and 30 degrees plantar flexion.  There was no comment with regards to the presence of painful motion.  There was no VA examination in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB bundled and rated the right lower leg and right foot conditions at 10% under VASRD code 8723 (Neuralgia of the anterior tibial nerve).  The VA rated the same bundled conditions as post-operative residuals based upon the multi-year remote separation examination.  

Panel members first considered whether the right lower leg (tibia and fibula) fracture could be reasonably justified as separately unfitting.  Although all of the CI’s presenting fractures occurred simultaneously via the same mechanism of injury, the anatomical variance would indeed support separate and distinct injured conditions.  Members deliberated and agreed that the fracture of the lower right leg with post-operative residuals of tenderness and pain would have independently caused the CI the inability to maintain satisfactory performance within his Air Force Specialty (AFS) and therefore, supports an unfitting and ratable condition.  

Pursuant to the above rationale coupled with the consideration of the totality of the evidence, members deliberated over the best coding scheme for this condition.  Panel members remained uncertain as to the PEB’s choice of a neuralgia condition in the absence of a neurological complaint or physical finding.  Members considered either a straight-forward ankle ROM code (5271) at 10% (moderate) or a 20% (marked) condition, or a direct tibia and fibula (impairment of) code 5262 at slight (10%) or moderate ankle disability at 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), all members agreed that the best and most straight forward coding scheme in this case was to use 5271 (limitation of motion) and by a majority vote, further concluded that the fluctuating decrease in dorsiflexion pre-separation between 5 and 10 degrees would equate to a “moderate” impairment and thereby, supporting a 10% rating.  

Right Foot Fractures.  In the same accident as described above, the CI received multiple fractures across 5 of 5 metatarsal bones in his right foot.  He underwent surgical pinning of his injuries on 27 July 2000.  Despite post-operative rehabilitation, the CI continued to have “discomfort in his right foot”, and x-rays noted degenerative joint disease (DJD) about the metatarsal bones.  This condition was included in the MEB submission with the diagnosis previously noted above.  

At the MEB NARSUM examination the CI complained of discomfort throughout his right mid-foot.  His PE revealed well-healed surgical scars upon the right foot.  Tenderness without swelling was present about the right mid-foot.  There was no comment with regards to the presence of painful motion with toe movements or a description of the CI’s gait.  

The panel directed attention to its rating recommendation based on the above evidence.  Noting the bundling of conditions by the PEB, the panel again determined that the multiple fractures of the right foot with post-operative residuals of tenderness and pain would have independently caused the CI the inability to maintain satisfactory performance within his AFS and therefore, supports it as an unfitting and ratable condition.  

Panel members considered VASRD codes 5283 (metatarsal bones; mal or non-union), 5284 (foot injuries; other), or 5279 (metatarsalgia) in rating this condition.  Noting a complete healing of the metatarsal fractures, panel members eliminated code 5283 as a possibility.  Members then deliberated over the sole rating of 10% under 5279 or a higher rating under 5284 in describing the impairment as “moderately severe” for 20% or “severe” for 30%.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that the single physical finding of right foot tenderness would not support any description greater than a “slight” impairment.  Noting that the minimum description under code 5284 is “moderate”, members chose to rate the foot condition analogously under 5279 at 10%.  

BOARD FINDINGS:  In the matter of the right tibia and fibula fracture condition, the panel majority recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the right foot condition, the panel unanimously recommends a disability rating of 10%, coded 5299-5279 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration. 

The panel 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	
Fracture; Right Lower Leg 	5271	10%	
Multiple Fractures; Right Foot	5299-5279	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150623, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:  The panel unanimously determined the right foot fractures is separately unfitting and rated 10%.  However, the minority voter recommends a 20% rating for the right lower leg fracture condition; opposed to the majority’s recommended 10% rating.  

The panel utilized VASRD code 5271 (ankle, limited motion) to rate the right lower leg fracture condition.  The panel majority found that the preponderance of STR evidence showed the CI with a normal gait and “moderately- limited” ROM for a 10% rating.  This is based on four deliberated ROM examinations:  the first two were performed 22 to 18 months before separation which documented dorsiflexion at 0 degrees (normal 20) and plantar flexion to 30 degrees (normal 45), and full ankle ROM, respectfully.  The second set were performed 8 to 3 months before separation revealed dorsiflexion to 10 degrees and plantar flexion to 30 degrees, and dorsiflexion to 5 degrees and plantar flexion to 30 degree, respectfully.  

The majority voter does not find the preponderance to STR evidence to show “moderately-limited” ROM because the aforementioned examinations revealed dorsiflexion at 0 and 5 degrees for a 100% to 75% reduction in dorsiflexion during those respective examinations.  Additionally, the panel agreed that the preponderance of the STR evidence documented the CI with normal gait even after unsuccessfully rehabilitating his unfitting right distal tibia and right mid foot fractures.  The panel did not find evidence of malingering to invalidate any of the aforementioned ROM examinations.  

Lastly, the minority voter finds that the MEB NARSUM ROM examination (dorsiflexion at 5 degrees or 75% reduction and plantar flexion at 30 degrees or 33% reduction), most proximate to separation, is most indicative of the CI’s disability at separation rated as “marked-limited” ROM (dorsiflexion at 5 degrees) or 20%.  This MEB NASRSUM examination is not overcome by the preponderance of STR evidence which includes both moderate and marked-limited ROMs.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the minority voter recommends a disability rating of 20% for the right lower leg fracture disability condition, coded 5271 (ankle, limited motion).  

The CI’s prior determination should be modified as follows; and, the discharge with severance pay should be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Lower Leg Fracture	5271	20%	
Right Foot Fractures	5279	10%	
COMBINED	30%	

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-01605.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended modification of your assigned disability rating without re-characterization of your separation with severance pay. 

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  The office responsible for making the correction will inform you when your records have been changed.

Sincerely,

XXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
1.  Directive 
2.  Record of Proceedings 
cc:
SAF/MRBR