RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03194
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20031201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated for “left leg fracture” with a disability rating of 10%.  

CI CONTENTION:  The VA rated his injuries higher.  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 -20030812	VARD – 20031015 & 20040830	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Leg Fracture	5299-5255	10%	Postoperative Residuals, Left Tibial Shaft Fracture	5299-5262	20%	20030822	
			Left Ankle Impairment  	5271 	20% 	20030822 	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Left Leg Fracture.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI sustained a comminuted left tibia fracture in November 2002.  He underwent open reduction internal fixation with screws and intramedullary rod placement.  Shortly thereafter, he developed compartment syndrome and underwent open fasciotomy. He was transferred to a military hospital, where he underwent surgical irrigation and debridement with partial wound closure with an 8-day hospital course.  Additional treatment included subsequent skin grafting, proximal interlocking screw removal due to pain, and a bone stimulator for delayed union.  Despite treatment, there remained incomplete healing with duty-limiting pain.  Diagnostic imaging showed complete healing of the posterior medial and posterior lateral cortex of the tibia, but radial lucency of the anterior lateral cortex remained.  

The 10 June 2003 MEB NARSUM examination, 6 months prior to separation, noted complaints of increased pain with activity or prolonged standing.  Physical examination showed well healed scars over the left lower extremity and anterior patellar area.  There was mild tenderness over the anterior patellar area which increased with flexion and extension.  Muscle strength of the ankle and foot were normal.  Light touch was intact over the entire lower extremity.  There was mild tenderness over the mid-shaft of the tibia with no obvious motion at the fracture site.  

During the 2 July 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported left knee and leg numbness and swelling.  Physical examination revealed a skin graft from the left thigh to the lower leg with decreased sensation to touch over the lateral lower leg.  

The 19 August 2003 VA goniometric range of motion (ROM) evaluation of the left knee and ankle, 3 months prior to separation, documented painful and limited motion of each joint.  Left knee flexion was 100 degrees (normal 140), but decreased to 98 degrees following repetition; left knee extension was 5 degrees (normal 0), but increased to 2 degrees after repetition.  Left ankle dorsiflexion was 0 degrees (normal 20), but increased to 5 degrees after repetition; plantar flexion was 20 degrees (normal 45), but increased to 23 degrees following repetition.  

At the 22 August 2003 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI complained of constant left leg pain, a limp, inability to stand for longer than 20-30 minutes, and inability to bend or play sports.  Physical examination showed normal posture and gait under the musculoskeletal evaluation, but the back examination noted he “walks with a limp on the left.  He is unable to walk on his heels because of his left lower extremity condition but can walk on his toes and tandem walk.”  There were multiple well-healed left leg scars, which included a large scar over left patella that extended down onto the tibial bone and a large skin graft lesion over the left lateral lower leg.  Strength of left ankle and foot dorsiflexion was decreased (4/5).  There was tenderness over the tibia mid shaft.  Sensation to light touch was intact.  The physician’s functional assessment stated, “The veteran walks with a limp.  He is unable to stand for prolonged periods of time.  There is decreased ROM of left knee flexion and extension as well as right [left] ankle dorsiflexion, plantar flexion, inversion and eversion.”  There was no functional impairment noted regarding the residual scars.  Sequential X-rays of the left tibia revealed interval healing of the tibial shaft fracture with the presence of a radial lucency of the anterolateral cortex.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left leg condition 10%, analogously coded 5299-5255 (femur, impairment of), citing mild tenderness over the tibia and radial lucency.  The VA rated the left leg condition 20%, analogously coded 5299-5262 (tibia and fibula, impairment of), based on the STR and C&P examinations, citing decreased ROM, decreased knee and ankle strength, a limp, and inability to walk on his heels, with moderate disability.  The VA also rated the left ankle condition 20%, coded 5271 (ankle, limited motion of), citing limited painful ankle ROM. 

The panel noted that the CI’s left lower leg disability was related to a tibial fracture and did not involve the femur (5255).  Therefore, rating under code 5262 was predominate.  There was no loose movement of the tibia requiring a brace, and the remaining 5262 rating criteria are for “knee or ankle disability” at the “marked” (30%), “moderate” (20%), or “slight” (10%) disability level.  Of note, the CI’s scar condition was not considered by the MEB or PEB and is not within the PDBR scope of review; however, any impact on “knee or ankle disability” could not be separated from rating under 5262 without undue speculation.  

The panel next deliberated the probative value of the examinations in evidence.  The C&P examination was closest to separation and more detailed, and therefore had the highest probative value, especially when considering the measured knee and ankle ROMs.  The panel noted the VA’s left ankle rating included both the tibial fracture condition as well as Achilles tendonitis.  Since any separate impairment from the Achilles tendonitis is not in the PDBR’s scope, the panel determined that all knee and ankle disability due to the tibial fracture is appropriately considered under code 5262 IAW VASRD §4.14 (avoidance of pyramiding).  

The panel noted that if separate ratings of the ankle and knee disability were considered based on the recorded ROMs, the ankle approached the 20% rating for marked limited motion (5262-5271) and the knee would rate 10% for painful limited flexion (5299-5262).  Given that the primary pathology was the tibial fracture, which under code 5262 considers both ankle and knee disability, the panel considered that coding analogous to 5299-5262 was predominate.  Although there were internal inconsistencies in the C&P examination which decreased its probative value, given the painful and limited knee and ankle ROMs, gait with a limp, inability to walk on his heels, as well as mid-shaft tibial tenderness, the panel adjudged that the CI’s disability picture at separation most closely approximated the “marked knee or ankle” disability picture.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the left leg condition, coded 5299-5262.  

BOARD FINDINGS:  In the matter of the left leg condition, the panel recommends a disability rating of 30%, coded 5299-5262 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Leg Fracture	5299-5262	30%	

The following documentary evidence was considered:

AR20180012269  XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear  XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of
Review (DoD PDBR) to re-characterize your separation as a disability retirement with the
combined disability rating of 30% effective the date of your medical separation for disability with severance pay. Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.
The re-characterization of your separation as a disability retirement will result in an
adjustment to your pay providing retirement pay from the date of your original medical
separation minus the amount of severance pay you were previously paid at separation.
The accepted DoD PDBR recommendation has been forwarded to the Army Physical
Disability Agency for required correction of records and then to the U.S. Defense Finance and
Accounting Service to make the necessary adjustment to your pay and allowances. These
agencies will provide you with official notification by mail as soon as the directed corrections
have been made and will provide information on your retirement benefits. Due to the large
number of cases in process, please be advised that it may be several months before you
receive notification that the corrections are completed and pay adjusted. Inquiry concerning
your correction of records should be addressed to the U.S. Army Physical Disability Agency,
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557.
A copy of this decision has also been provided to the Department of Veterans Affairs.

Enclosure