RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04336
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20050806

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Infantryman, medically separated for “chronic left lower leg and knee pain” and “left foot weakness,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  The VA rated his conditions at 40%, but he contends that a 50% rating is justified.  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 - 20050519	VARD - 20060210	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Lower Leg and Knee Pain	5099-5003	10%	Status Post Open Left Tibia Fracture 	5262	10%	20051026	
Right Foot Weakness	8523	10%	Post Peroneal Nerve Damage to Right Foot 	8523	10%	20051026	
Post-Traumatic Stress Disorder	Not Unfitting	Post-Traumatic Stress Disorder	9411	10%	20051026	
Hearing Loss 	Not Unfitting	Bilateral Hearing Loss	6100	NSC	20051026	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Left Lower Leg and Knee Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent surgery in October 2004 after he sustained a comminuted fracture of the left tibia from an IED blast.  Radiographs showed a shrapnel fragment anterior to the fibula.  The tibial fracture was treated by closed reduction and internal fixation.  A muscle flap and skin graft to the leg were part of reconstruction.  During the 1 March 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported constant, dull left knee pain that became sharp with movement.  The 16 March 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of pain of the left knee and shin area below the knee.  The pain progressed with movement of the left leg and lasted all day.  The condition was aggravated by prolonged sitting, standing or walking.  

The 20 March 2005 commander’s statement noted the CI could barely walk without pain and discomfort, and sitting for extensive periods only brought stiffness and more pain.  He had pain daily with little relief from pain medications.  The April 2005 electromyogram (EMG) showed normal left peroneal motor response and normal left sural sensory response.  The 25 April 2005 physical therapy range of motion (ROM) evaluation showed active left knee flexion of 145 degrees (normal 140) and extension of 0 degrees (normal).  The May 2005 X-ray showed interval healing without change in alignment or position of fracture fragments.  The orthopedic hardware was without loosening or metal fracture.  The anterior mid-tibia bony defect was noted.  The examiner opined the CI was unlikely to ever fully recover from the muscular damage to the left leg.  

At the 26 October 2005 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported pain, stiffness and limited motion of the left knee.  The tibial fracture had no significant effects on his usual occupation, but he was unable to do exercise and sports.  He was limited to standing for 15-30 minutes and could only walk a quarter of a mile.  Physical examination showed a normal gait and left knee flexion of 140 degrees.  However, the examiner noted loss of motion with minimal repetitive use due to weakness.  There was muscle weakness, but no giving way, instability, dislocation, subluxation, muscle spasm, joint swelling, effusion or tenderness in the left knee.  The left shin demonstrated atrophy, deformity (angulation), stiffness, pain and weakness.  Flare-ups were severe and occurred weekly.  The surgical scar on the left shin was tender. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left lower extremity condition 10%, coded 5099-5003 (analogous to degenerative arthritis), citing frequent and slight pain under the US Army Physical Disability Agency pain policy.  The VA rated the left lower extremity condition 10%, coded 5262, (impairment of the tibia and fibula), based on the C&P examination, citing mal-union of the tibia and fibula with slight knee or ankle disability.  

The panel noted the leg and knee conditions were both the result of pain due to the healed fracture of the tibia and therefore, IAW §4.14 (avoidance of pyramiding), could not be rated separately.  The NARSUM noted pain in the knee and pain in the shin below the knee.  Although there was evidence of tibial healing, movement of the leg exacerbated the pain.  There was sufficient evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for the left knee.  There was no limitation of motion in the left knee which attained a minimum rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257) in the knee, 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.  The fracture of the tibia supported consideration under code 5262 (impairment of the tibia and/or fibula) but since the disability was mild, there would be no advantage to the CI.  No additional functional limitation was evidenced by the examinations.  Therefore, the panel concluded there was not sufficient evidence to support a rating higher than the 10% adjudicated by the PEB.  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 for the left lower extremity condition.  
Right Foot Weakness.  According to the STR and MEB NARSUM, the CI’s right foot condition began in October 2004 after his vehicle sustained an IED attack in Iraq.  He reported pain, numbness and tingling.  X-rays showed no fracture. 

At the 2 March 2005 nurse practitioner examination, 5 months prior to separation, the right sensory component of the foot revealed decreased sharp and soft sensation from the dorsal aspect of the base of ankle to the dorsal aspect of the big toe and half of the first toe in a swath of 1.5 cm wide from ankle to toes.  

At the 16 March 2005 MEB examination the CI complained of numbness and tingling of the right foot.  The 17 March 2005 neurology examination showed deep peroneal nerve involvement evidenced by motor weakness atrophy and hypoesthesia of the first web space but also a branch of the superficial nerve as there was a strip of decreased sensation along the top of the foot.  The 4 April 2005 electro myelogram (EMG) showed incomplete right superficial and deep peroneal nerve lesions consistent with a laceration of the nerve at the ankle (positive right peroneal motor and sensory responses).  

The 25 April 2005 physical therapy ROM evaluation showed right ankle dorsiflexion of 20 degrees (normal) and plantar flexion of 40 degrees (normal 45).  The May 2005 X-ray showed shrapnel fragments in the right ankle.  There were no fractures or significant soft tissue swelling.  The 20 March 2005 commander’s statement noted the CI’s right foot and ankle were also a burden, despite the nerve repair he still had a loose feeling in his foot and the damaged tendon gave him discomfort daily.  

At the 26 October 2005 C&P evaluation the CI reported pain in the right foot with weekly severe flare-ups, which lasted for hours.  There were no significant effects on occupational activities and he could perform the activities of daily living, but there was a moderate effect on his ability to do chores, shop and travel and he couldn’t exercise or play sports.  Physical examination showed a normal gait.  Right ankle ROM by goniometer was 45 degrees of flexion with loss of motion after repetitive use due to weakness.  There was no evidence of abnormal weight bearing, but there was evidence of weakness/paralysis.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition 10%, coded 8523 (incomplete paralysis of the anterior tibial nerve), citing moderate partial paralysis.  The VA also rated the right foot condition 10%, coded 8523 based on the C&P examination, citing moderate incomplete paralysis of foot movements.  The panel noted the NARSUM examination did not address gait or painful motion of the right ankle/foot.  The C&P examination, more proximal to separation, noted the CI had full ROM with some unspecified limited ROM with repetitive movement due to weakness, but gait was normal.  The CI was able to perform daily activities with moderate to severe impact on other activities.  The panel agreed the disability met the moderate level of disability, consistent with the 10% coding under 8523.  After due deliberation, considering all of 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 right foot condition.  

Contended PEB Conditions:  Post Traumatic Stress Disorder (PTSD) and Hearing Loss.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Neither of the conditions were profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions and so no additional disability ratings are recommended.  
BOARD FINDINGS:  In the matter of the left lower extremity condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the right foot condition and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the contended PTSD and hearing loss, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends 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 20170428, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180006278, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
Enclosure