RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXX	CASE: PD-2017-02618
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20090923

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “painful, contracted scar from surgery for comminuted femoral fracture” and “retained shrapnel (from an accident gunshot wound), neuropathy and left leg length discrepancy,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  No specific contention was made.  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 - 20090702	VARD - 20090630	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Painful, Contracted Scar..	7804	10%	Painful Scar	7804	10%	20090123	
Retained Shrapnel, Neuropathy and Left Leg Length Discrepancy	8729-5275	0%	Retained Shrapnel, Neuropathy	8729-5275	0%	20090123	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:

Painful Contracted Scar. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered a comminuted mid-femur fracture in October 2007 after an accidental gunshot wound (GSW) while cleaning a handgun. The fracture was repaired with open reduction and internal fixation and placement of an intramedullary rod.

At the 23 January 2009 VA Compensation and Pension (C&P) examination, 8 months before separation, physical examination showed a depressed scar of the distal medial thigh that measured 2.5 centimeter (cm) x 1 cm. There was tenderness, hyperpigmentation, and abnormal texture, but no ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation or limitation of motion. Three non-tender surgical scars were also noted: a level 8 cm x 0.5 cm scar of the anterior knee, lower thigh; a 1 cm x 0.3 cm scar on the lateral left upper knee; and, a 2 cm x 0.2 cm scar on the lateral left thigh. Two of the scars were hyperpigmented, but none had any other of the previously listed characteristics. At the 6 March 2009 MEB NARSUM examination, 7 months before separation, the CI reported chronic left thigh pain from the GSW and the examiner noted a minimally antalgic gait with no sensory deficits. There was a tender, contracted 2 cm entrance wound scar of the anterior medial thigh but the surgical scars were non-tender.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the “painful, contracted scar” 10%, coded 7804 (scar, unstable or painful), citing “pain prevents full unrestricted movement,” as recommended by the VA under the VA/DoD Joint Disability Evaluation System (DES) Pilot Program, and based on the C&P examination, citing “superficial scar that is painful on examination.” Panel members agreed that a 10% rating was supported under code 7804 for one painful scar, but there was no evidence of three or four painful scars for the next higher rating. The panel considered other skin codes for scars, but all were less applicable and/or not advantageous for rating. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the scar.

Retained Shrapnel, Neuropathy, and Left Leg Length Discrepancy (LLD). As previously noted, this case was adjudicated as part of the VA/DoD Joint DES Pilot Program, and the PEB forwarded “left thigh weakness” and “left LLD” (both residuals of the GSW and femoral fracture) as separate unfitting conditions to the VA for a proposed rating. The VA combined these conditions (as noted on the 2 July 2009 PEB Form 199) and added neuropathy as a single unfitting condition, which was characterized as “retained shrapnel [muscle injury], neuropathy, and left leg length discrepancy residuals…,” coded 8729-5275 (external cutaneous nerve neuralgia-bones, of the lower extremity, shortening of), and rated 0%. The PEB then accepted the VA DES proposed rating. The panel’s initial charge in this case was therefore directed at determining if combining conditions 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 DES or be found unfit because of 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. The evidence for the neuropathy and LLD are presented together with attendant recommendations regarding separate unfitness, and separate rating if indicated.

The 18 December 2008 permanent profile listed “chronic left thigh pain, S/P GSW, ORIF with intramedullary rod placement and acquired short leg,” with physical limitations of no running, unlimited walking, biking, or swimming, “no Marine standard,” marching, lifting over 20 pounds, or standing limited more than 10 minutes. The commander’s statement did not specify the CI’s medical conditions, but noted the he was unable to complete physical training, combat training or lifting/moving objects to standard.

According to the STR and MEB NARSUM, after the CI underwent surgery for the accidental GSW, X-rays showed multiple retained bullet and bone fragments and obvious shortening of the leg. The CI gradually improved and returned to Iraq in April 2008, but left femur and knee pain recurred after wearing required gear and conducting foot patrols, and prevented him from performing duties of his military specialty.  Upon redeployment, an orthopedic examination  on

29 October 2008 noted a prominent screw irritating the iliotibial band at the knee, and a left LLD of at least 1 cm, which caused a limp. Femur X-rays showed a healing fracture, and a scanogram revealed the left lower extremity was 1-1.5 cm shorter than the right. The surgeon stated the CI required a permanent profile for the chronic pain and weakness due to the injury and LLD.

On 4 November 2009, the prominent distal screw was removed, and on 12 December 2008, during a physical therapy examination, the CI reported continued left knee and lower quadriceps muscle pain with weight bearing and prolonged standing. Physical examination showed an antalgic gait, but normal bilateral hip and knee range of motion (ROM) and strength, and no tenderness. The CI was able to perform a full squat, but had difficulty with a single leg squat. Left knee and femur X-rays on 23 January 2009 showed the old femur fracture, normal alignment and rod placement in the distal femur, and no degenerative disease. A large amount of shrapnel was also seen within the soft tissues adjacent to the fracture site.

At the VA C&P examination, the CI reported constant but tolerable left thigh pain that traveled to the knee and was aggravated by the shortened leg length and activity. He also had chronic back as well as bilateral hip and knee pain. Physical examination showed a slightly antalgic gait, but no assistive device for ambulation. The left leg was 94 cm and the right leg was 95.5 cm, and there was loss of sensation in the distal medial thigh. Left hip ROM was reduced, with measurements, in degrees, showing: flexion to 105 (normal 125), extension to 20 (normal 30), abduction to 30 (normal 45), and external rotation to 40 (normal 60), with painful motion. After repetition, there was increased pain without additional limitation of motion, fatigue, weakness, lack of endurance or incoordination. There was left knee tenderness and painful motion with flexion to 120 degrees (normal 140) and normal extension.

At the MEB NARSUM examination, the CI reported chronic left leg pain after the GSW, with the femoral fracture and LLD causing chronic back, bilateral hip and knee pain. The examiner noted a minimally antalgic gait due to leg pain, and no need for an assistive device for ambulation. Gross motor strength was graded 4/5 with no sensory deficits. There was crepitus at the knee and hip with movement, no restricted motion of the left hip in adduction, abduction, internal or external rotation, and increased pain with knee extension and repetitive motion (not quantified). There was atrophy of the thigh musculature compared to the uninjured leg. The examiner stated that the CI could not perform the duties of his military specialty due to “chronic left thigh pain status post gunshot wound, comminuted femoral fracture, requiring ORIF and internal medullary rod placement and resulting in an acquired short leg and is painful, contracted scar.” However, the “recent onset of bilateral knee, hip and back pain” did not fail retention standards.

The panel first considered whether the retained shrapnel, neuropathy, and LLD, having been de- coupled from the combined PEB adjudication, remained separately unfitting as established above. There was no performance based evidence from the record that the sensory loss of the thigh significantly interfered with satisfactory duty performance at separation, and panel members concluded that the neuropathy could not be recommended as separately unfitting. The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either the retained shrapnel or the left LLD over the other. Since undue speculation would be required to conclude that either condition would not have unacceptably interfered with military performance, panel members agreed that these conditions were each reasonably justified as separately unfitting and eligible for Service disability rating.

The panel directed attention to its rating recommendations based on the above evidence, and first considered a rating for the retained shrapnel IAW VASRD §4.73 (muscle injuries), coded 5314 (group XIV, knee extension, ITB, anterior thigh group). A 10% rating was supported based on evidence of moderate muscle injury for a penetrating wound of a single bullet with: retained shrapnel fragments, consistent complaint of thigh pain, a contracted scar, knee pain, and left

thigh muscle atrophy compared to the right as documented at the MEB NARSUM examination. However, because there were no other criteria to support characterizing the CI’s muscle injury as moderately severe or severe based on mechanism of injury, history of the injury, or objective findings, and thus a higher rating was not warranted for the retrain shrapnel. For the left LLD, panel members agreed there was no higher rating than 0% supported under code 5275, which requires a minimum of 3.2 cm for a 10% rating. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the retained shrapnel, coded 5314, and a disability rating of 0% for the LLD, coded 5275.

BOARD FINDINGS: In the matter of the painful, contracted scar and IAW VASRD §4.118, the panel recommends no change in the PEB adjudication. In the matter of the retained shrapnel and left leg length discrepancy, the panel recommends adjudication of the following separate conditions: unfitting retained shrapnel, coded 5314 and rated 10% IAW VASRD §4.73; and an unfitting leg length discrepancy, coded 5275 and rated 0% IAW VASRD 4.71a. In the matter of the neuropathy, the panel agrees it cannot recommend it for additional disability rating. 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	
Painful, Contracted Scar	7804	10%	
Retained Shrapnel	5314	10%	
Left Leg Length Discrepancy	5275	0%	
	COMBINED	20%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170304, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20190012350, XXXXXXXXXXXXX 

Dear XXXXXXXXXXXXX

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.