RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01799
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20041202

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Crane Operator, medically separated for “pain and restricted motion of right leg,” with a disability rating of 10%.

CI CONTENTION:  The CI contended for his right leg condition and that it continues to worsen and negatively impact daily activities.  The 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 – 20041015	VARD - 20050303	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Pain and Restricted Motion of Right Leg…	5261	10%	Residuals, Fractured Tibia and Fibula, Status Post Open
Reduction, Internal Fixation; Right Lower Extremity	5299-5262	30%	20041007	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Pain and Restricted Motion of Right Leg.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent right knee surgery on 16 March 2004 for tibia and fibula fracture.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “pain right leg after nailing right tib fib fracture” for PEB adjudication.

At the time of the orthopedic clinic appointment on 20 May 2004 (6 months before separation), the examiner recorded the CI used crutches and had partial weight bearing on the right.  The right leg was in correct alignment. All surgical incisions were healed.  There was no swelling, effusion or tenderness to palpation.  The range of motion was “full at the knee and excellent at the ankle.”  Neurovascular examination was intact.  Stability was good.  X-rays showed early healing at the proximal tibia and fibula and four locking screws and a nail.  

At the MEB NARSUM examination, 8 September 2004 (3 months before separation), the CI reported he was not in pain during the examination but does feel pain “at times” and the knee did get sore.  The CI reported dull pain at the fracture when it rained.  He had made progress with therapy but his knee “gives” when he tried running.  Pain was 0/10 at rest to 4.5/10 with use’; it was occasional and slight.  The MEB physical examination noted the CI had a limping gait.   There was no tenderness or swelling.  The examiner noted the right foot “[turned] outward in valgus position”.  There was no rotational deformity.  All incisions were well healed.  On examination, he had 10 degrees extension (0 normal) and 110 degrees flexion (140 normal) taken with a goniometer.  The knee was stable with no neurovascular deficit or effusion.  The legs were equal but the right was 7 valgus vs. 0 with o rotational deformity.  Incisions were well healed.  

At the 7 October 2004 VA Compensation and Pension (C&P) evaluation, performed 2 months before separation, the CI reported constant pain in the~ tibula and fibula area. On a scale of 1-10, he CI rated it a ‘2’ describing it as “a kind of strange pain, almost dull feeling.”  When aggravated pain went to a 4 or 5.  He cannot run because the knee will give way and he falls.  The knees felt weak and fatigued.  Driving greater than an hour would make the knee “stiff and achy”.  The CI stated that walking did not necessarily aggravate it.  He does not use a crutch, cane or brace.  Physical therapy, over the counter medication and ice help.  Physical examination showed full ROM and the CI did not complain of pain. After repetitive range of motion he still had full ROM without pain. No swelling was noted but the knee angles out at 7 degrees.  There was a valgus deformity of the knee causing the CI to walk with a limp to the right and the foot turns outward in a valgus position.  September x-rays showed a healed tib-fib fracture with locking screws and nails.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10%, coded 5261 (limitation of extension), citing limitation of extension.  The VA rated the right knee condition 30%, coded 5299-5262 (impairment of tibia and fibula), citing ‘marked’ knee and ankle disability.  The VA additionally rated the right knee surgical scars at 10% under code 7804 (scar(s), unstable or painful).  

The MEB examination recorded right knee extension limited to 10 degrees supporting the 10% rating (code 5261) adjudicated by the PEB.  There was no limitation of flexion that supported a higher rating under the VASRD diagnostic code for limitation of extension (5261).  Therefore the panel considered whether a higher rating was supported under other diagnostic code options.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes.  However, there was a fracture of the tibia and fibula to support consideration under the respective codes for knee impairment related to long bone conditions (5262).

The panel considered rating under code 5262 (tibia and fibula, impairment of) in accordance with VASRD §4.20 (analogous ratings) and §4.7 (higher of two ratings).  Application of the code, based on the underlying pathology of the tibia /fibula bone, was the best fit with regard to symptomatology and functional limitations.  This approach offers a 20% rating for ‘moderate’, and 30% for ‘marked’, ankle disability.  Both the MEB and C&P examinations document persisting complaint of pain, walk with a limp to the right with a valgus deformity of the knee, which angles out at 7.  However, he did not require the use of assistive devices and there was no evidence of instability.  He is able to walk and drive.  Members agreed, therefore, that analogous rating under 5262 was justified; and, that a 20% rating for moderate knee disability was adequately supported by the evidence, coded 5299-5262.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the pain and restricted motion of the right leg condition, coded 5299-5262.    

BOARD FINDINGS:  In the matter of the pain and restricted motion of the right leg condition, the panel unanimously recommends a disability rating of 20%, coded 5299-5262 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	
Pain and Restricted Motion of the Left Leg	5299-5262	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160705, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170009089, 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