RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01084
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20080630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Cannon Crewmember, medically separated for “limitation of motion, right (dominant) elbow” with a disability rating of 10%. 

CI CONTENTION:  “Disabilities have gotten worse.  No signs of improvement…”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20080327	VARD – 20080813	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Limitation of Motion, Right (Dominant) Elbow 	5206	10%	Right Elbow Strain [w/ Surgical Residuals]	5024-5206	20%	20080414	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Limitation of Motion, Right Elbow Status Post Fracture.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered a fracture (olecranon process, comminuted) of his dominant right elbow during a vehicular accident on 14 July 2007 while deployed to Iraq.  He underwent initial debridement followed by an open reduction and internal fixation on 17 July (12 months before separation).  Post-operative STR entries documented an uncomplicated recovery, but lack of restoration of acceptable range of motion (ROM) and function.  Additional surgery was considered but reasonably declined, given the risks and indeterminate outcome.  
There were multiple recorded ROM measurements over the clinical course.  The later entries, reflecting the period of rehabilitation approaching separation, recorded flexion in the range of 90-100 degrees (normal 145, 100 for 10%, and 90 for 20% [major, code 5206]), with an average of 95 degrees.  The range of measurements of extension during this period (given as minus degrees from full extension) was 20-35 degrees (normal 0, 45 for minimum 10%), and the majority were 20 degrees.  The range for pronation was 75-90 degrees (normal 80, 60 for minimum 20%), and the range for supination was 70-90 degrees (normal 80, 30 for minimum 10%).  Measured grip strength was in the average range.  Normal post-operative hardware placement and alignment was confirmed by imaging (serial X-rays, CT).  There were no STR entries contrary to the above evidence, and none that documented any additional VASRD-ratable findings.

The 18 March 2008 MEB NARSUM examination, 3 months prior to separation, documented pain “60% of the time during the day” rated 4/10 (with medication) that limited lifting (5 pounds maximum with right arm) and prohibited multiple general soldiering requirements.  The physical examination recorded the absence of atrophy, normal (5/5) extremity and grip strength, normal sensation, a healed incision, and “marked” joint tenderness.  The NARSUM examiner recorded ROM measurements of flexion to 100 degrees and extension to 20 degrees.  The NARSUM also incorporated goniometric ROM measurements performed by occupational therapy (OT) a week earlier (10 March).  The latter recorded flexion to 100 degrees (90, 95, 100), extension to 20 degrees, pronation to 85 degrees, and supination to 70 degrees; specifying painful motion and some mechanical limitation.  

The 14 April 2008 VA Compensation and Pension (C&P) examination, 2 months prior to separation, documented intermittent pain (average 2 hours daily) rated 10/10 that interfered with activities requiring repetitive elbow motion and pushing.   The physical examination recorded tenderness and guarding without swelling or muscle weakness.  Measured ROM was flexion to 90 degrees, extension to 0 degrees, pronation to 50 degrees, and supination to 50 degrees; specifying painful motion but no degradation with repetition.  Of note, a VA clinical entry of 8 July 2008 (9 days after separation) documented “not quite full extension and approximately 90 degrees flexion.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5206 (for limited flexion as detailed above) was accurate for the cited flexion of 100 degrees.  The VA’s 20% rating under code 5024-5206, (tenosynovitis rated under criteria of 5206) cited the applicable 5206 flexion criterion for the C&P ROM evidence. 

Other than the above competing evidence for a 10% versus a 20% rating under criteria of code 5206, there was no evidence that would support a rating higher than 10% under any alternate ROM code (5207, 5208, 5213) or other code available in VASRD §4.71a.  The panel thus deliberated the probative value of the conflicting evidence for limitation of flexion.  Members first noted that the service ROM evidence was equivocally consistent with the 10% criterion of code 5206.  Although the PEB cited flexion to 100 degrees, possibly relying on the highest OT measurement (see above), a great preponderance of the service ROM evidence documented flexion to 95 degrees.  The latter is midway between the 10% and 20% criteria, a compelling circumstance for application of reasonable doubt.  Furthermore, the C&P measurement of 90 degrees, an unequivocal 20% criterion, was more temporally probative to separation and corroborated by a clinical entry very proximate to separation.  Members thus agreed that the totality of the flexion ROM evidence was more fairly aligned with a 20% rating.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends a 20% rating for the right elbow condition under code 5010-5206 (traumatic arthritis rated for limitation of flexion).

BOARD FINDINGS:  In the matter of the right elbow condition, the panel recommends a disability rating of 20%, coded 5010-5206 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.

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

CONDITION	VASRD CODE	PERMANENT RATING	
Limitation of Motion, Right (Dominant) Elbow	5010-5206	20% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170222, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

AR20180004766, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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 correspondence has been also provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure