RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00194
BRANCH OF SERVICE:  navy 	SEPARATION DATE:  20070402

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Information Systems Technician, medically separated for “left tibial stress fracture” and “osteomyelitis,” rated 10% and 10%, respectively, with a combined disability rating of 20%.   

CI CONTENTION:  “Review all conditions.”  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 - 20070125	VARD - 20080207	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Tibial Stress Fracture	5003-5262	10%	L Tibial Fracture [Surgical Residuals]
(No VA Rating for Osteomyelitis)	5262	0%	20071002	
Osteomyelitis [Left Tibia]	5000	10%					
Post-Operative Recurrence of Tibial Stress Fracture 	CAT II					
Right Tibial Stress Fracture	CAT III	R Tibial Fracture [Surgical Residuals]	5262	0%	20071002	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Left Tibial Stress Fracture with Osteomyelitis (Subsuming Category II Recurrence).  The panel noted that the PEB provided separate ratings for the left tibial and osteomyelitis conditions.  As will be apparent from the evidence below, however, the osteomyelitis was intrinsic to the clinical features, fitness assessment, and disability for the unfitting left tibial condition.  The conditions are therefore presented together with the recommendation(s) derived from the interplay of the two diagnoses.  The panel’s recommendation(s) may not produce a lower combined rating than that of the PEB, as stipulated in DoDI 6040.44.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered a stress fracture of his left tibia from an injury in January 2005 and underwent an intramedullary nail fixation soon afterwards (date not in evidence).   He suffered continued pain with running and the stress fracture failed to heal.  The bone was debrided and the nail removed in September 2005.  An orthopedic entry two weeks later documented that the surgical wound (mid-tibial) had gotten wet and an oral antibiotic was started for infection.  In November 2005 the bone was again debrided and the scar revised, and there was a follow-up note 11 days later that documented a superficial infection treated with an oral antibiotic.  

It was not clear from the STR as to precisely when the complication of osteomyelitis (infection spread to the bone itself) was diagnosed, but in January 2006 the CI was started on a 6-week course of intravenous (IV) antibiotics (via peripherally inserted central catheter line).  In March 2006 the intramedullary nail was replaced and that was the last surgical intervention.  There was a follow-up note confirming that the IV course of antibiotics was completed on 9 February 2006 (14½ months before separation).  All entries after that documented an uncomplicated course, with no evidence of recurrent infection or other complications, and no further treatment with antibiotics (oral or IV).  There was no evidence for a draining wound sinus throughout the clinical course.  The outpatient STR evidence probative to functional impairment, range of motion (ROM), and other VASRD rating criteria was consistent with that from the NARSUM as below.  

The 13 December 2006 NARSUM examination, 4 months prior to separation, was supplemented by a separate STR entry from the same orthopedist on the same day.  These documented good bone and wound healing, but persistent “minimal to moderate” pain localized to the anterior shin.  The CI had resumed full activities without limitations except for running, and was “interested in increasing PT [physical training] options.”  The physical examination recorded the absence of tenderness “over his debridement scars as well as his stress fracture” and “minimal” tenderness over prominent hardware, full strength (5/5), and intact neurovascular findings.  Neither the NARSUM nor STR clinical entries addressed effusion, impingement, instability or other ratable findings for the knee or ankle joints; although, these were not clinically suspect.  Ankle ROM was documented as “full.”  Measured ROM for the knee was flexion to 90 degrees (normal 140, 45 for minimum 10%) and minus 5 degrees extension (normal 0, minus 10 degrees for minimum 10%).  There were no comments regarding painful motion.

The 22 October 2007 VA Compensation and Pension (C&P) evaluation, 7 months after separation, documented “constant” pain (location not specified) rated 6/10 that the pain was “elicited with physical activity;” although, the examiner specified that there were no limitations on walking, negotiating stairs, or chores such as gardening or mowing.  The physical examination recorded a normal gait, the absence of tenderness, no signs of infection, normal strength, and normal neurovascular findings, and the absence of knee effusion, instability, or impingement.  Measured ROM was normal in all planes for the knee and for the ankle (20 degrees dorsiflexion and 45 degrees plantar flexion); and, the examiner additionally specified the absence of painful motion or ROM degradation with repetition for each joint.

The panel directed attention to its rating recommendation(s) based on the above evidence.  The PEB’s 10% rating for the left tibial stress fracture under code 5003-5262 (degenerative arthritis rated as ‘tibia and fibula, impairment of’) did not cite a rationale, but the applicable criterion of code 5262 is “slight knee or ankle disability.”  Code 5262 offers ratings of 20% for “moderate” and 30% for “severe” knee or ankle disability.  Members noted that the PEB’s Category II diagnosis “recurrence of tibial stress fracture after intramedullary nailing” was resolved at the time of separation; and, that notwithstanding, would be substituted by the rating for the unfitting stress fracture.  The VA’s 0% rating for the tibial stress fracture under code 5262 referenced the C&P evidence and cited failure to achieve the minimum “slight” criterion.  

The PEB conferred an additional 10% rating for osteomyelitis under code 5000 (osteomyelitis, acute, subacute or chronic), treating it as a separately unfitting condition without elaboration of a rationale for either its fitness or rating determinations.  There was no VA evidence for or rating of osteomyelitis.  The 10% criteria of code 5000 are “inactive, following repeated episodes, without evidence of active infection in past 5 years.”  The 20% criteria are “with discharging sinus or other evidence of active infection within the past 5 years.”  The higher ratings specify complications not in evidence.

With regards to the tibial stress fracture, members agreed that the most advantageous code for rating was 5262; although, there were questions regarding its applicability.  The code specifies malunion or nonunion fracture complications, whereas the condition was a healed and normally aligned stress fracture; thus, it would constitute an analogous application of code 5262 at best.  Furthermore the code is directed at knee or ankle joint disability; whereas, the clinical pathology, pain, and disability was primarily at the mid-shaft tibia, and not contiguous to either joint.  Members agreed that, if rating under code 5262 were conceded, the functional evidence from the NARSUM did not justify a rating higher than 10%.  

There was no ROM limitation supporting a minimum 10% rating for either joint, and there was no evidence for any other criterion (effusion, instability, locking, etc.) in justification of a 10% rating under any applicable joint code.  It would therefore require satisfactory evidence of painful motion to support a minimum 10% rating (as per VASRD §4.59) under any code other than 5262.  Given that painful motion was not specified in any service evidence and was refuted by the VA evidence, and that code 5262 was equivocally applicable, it required significant concessions to justify the PEB’s separate 10% rating for the stress fracture.  Members considered this factor in its assessment of the fairness of the PEB’s combined rating of 20%.

With regards to the PEB’s separate rating for osteomyelitis, code 5000 is specific to the diagnosis and no alternative VASRD code is readily applicable; although, the “repeated episodes” requisite for a 10% rating (see above) raises the question of whether the minimum rating threshold of code 5000 was reached in this case.  The evidence reflected a single episode of osteomyelitis that was resolved by the time of separation after a course of intravenous antibiotic.  It was difficult to reconcile this fact with a conclusion that the condition remained separately unfitting, and it was quite plausible that the PEB intent was to bestow an additional rating for the same unfitting condition.  

A 20% rating under code 5000 (see above criteria) was entertained.  Members agreed, however, that both the confusion with the PEB’s fitness determination and the concession required for justifying even the minimum rating were compelling arguments against the higher recommendation.  Members also agreed that the overall disability in this case, as reflected by the above functional evidence, could not be rationally justified as meriting a combined rating greater than the PEB’s 20%.  

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 of the left tibial stress fracture complicated by osteomyelitis.

Contended PEB Condition:  Right Tibial Stress Fracture.  The CI was diagnosed with a right tibial fracture equivalent to that for the left tibia, and similarly underwent intramedullary nailing in 2001.  This was well before the clinical course for the left tibia condition, and there were no complications or necessity for further surgery.  There were no STR entries that indicated any clinical acuity for the right tibia in the intervening years to separation.  The Limited Duty boards were for the left tibial condition only; and, the commander’s non-medical assessment did not implicate the right tibial condition.  

The panel directed attention to its recommendation based on the above evidence, and its main charge was an assessment of the fairness of the PEB’s determination that the right tibial condition was not unfitting.  Members agreed that there was no performance-based evidence that indicated the condition interfered with duty requirements to an extent that would have prohibited further military service.  Furthermore, the condition was subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”

After due deliberation in consideration of the preponderance of the evidence, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the right tibial stress fracture, thus it was not eligible for service rating.

BOARD FINDINGS:  In the matter of the left tibial stress fracture and osteomyelitis conditions and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudications.  In the matter of the contended right tibial stress fracture, the panel unanimously recommends no change from the PEB determination as not unfitting.  There are 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 20160406, 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 USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN

		
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