RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX		CASE: PD-2019-00219 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20020708

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

CI CONTENTION: Through counsel, review requested of unfitting low back, left leg, and left ankle pain. 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 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 – 20020319	VARD - 20021022	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Leg Pain	5299-5003	10%	
Residuals S/P Fractured Left Tibia and Fibula	

5299-5262	

10%	

20020513	
Chronic Left Ankle Pain	Cat II					
Status Post (S/P) Open Fracture, Left Tibia and Fibula
w/Intramedullary Fixation	Cat II					
Chronic Low Back Pain (LBP)	Cat II	Chronic Lumbosacral Strain	5295	10%		
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:

Chronic Left Leg Pain. The PEB adjudicated the left leg pain as a primary Category I condition with three Category II (contribute to the primary unfitting condition but not separately ratable) conditions as charted above. All four conditions are discussed together below as they are related to the CI’s compound left tibia and fibula fracture, which occurred on 30 August 1999. According to the service treatment record and MEB narrative summary (NARSUM), the fracture was located at the junction of the middle and distal thirds of the tibia with comminution. There was also a transverse fracture of the proximal shaft of the fibula. The CI underwent open reduction and internal fixation of the tibia with placement of an intramedullary rod. Recovery was uncomplicated and he was eventually released to return to full duty aboard a ship. However, he reported left leg and ankle pain, as well as LBP, with prolonged standing and climbing ladders,

despite physical therapy, rest and anti-inflammatory  medications.  A  physical profile,  dated  11 July 2001, listed chronic LBP and left lower extremity pain status S/P intramedullary fixation of tibia/fibula fracture. On 16 October 2001, a pain management provider noted persistent pain from the left knee to the ankle, and that medications were not providing relief. No physical examination was performed, and the CI refused other treatment options.

The 28 November 2001 MEB NARSUM examination, 7 months prior to separation, noted complaints of left leg and ankle pain as well as and LBP with prolonged standing and climbing ladders. Physical examination showed a large palpable bony callus formation at the fracture site and tenderness long the knee joint line, and anterior ligaments, but no soft tissue swelling, instability or meniscal pathology. Left knee range of motion (ROM) was full, and ankle dorsiflexion (DF) was to 10 degrees (normal 20) with plantar flexion (PF) to 50 degrees (normal 45). Lumbar spine examination showed the CI was able to touch his toes, extend 10 degrees, and laterally bend to mid-thigh. There was tenderness without deformity or muscle spasm, straight leg raise and hip tests were negative for radicular symptoms and pain. Lower extremity strength and sensation were normal throughout. Imaging results from the fall of 2001 were referenced and showed a 1 cm leg length discrepancy, normal lumber spine and left knee/ankle findings, and well-healed tibia and fibula with good alignment and no evidence of malunion. The 8 December 2001 MEB addendum noted that the CI’s chronic left leg, ankle, and LBP were medically unacceptable conditions that did not meet retention standards.

At the 13 May 2002 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported left leg/ankle pain, weakness, stiffness, swelling and instability as well as constant LBP and stiffness, but denied flare-ups. Physical examination showed a 4 x 6-cm L- shaped scar along the left anterior leg with no swelling and which caused no functional limitation. Left ankle DF was to 20 degrees and PF to 45 degrees, with pain through full ROM. A 0.5 cm leg length discrepancy was noted, but physical findings for the left knee were not recorded. Lumbar spine ROM was full with painful motion. The examiner noted that the left ankle condition was a duplication of the left tibia/fibula condition.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the left leg condition 10%, analogously coded 5003 (arthritis, degenerative). The VA also rated the condition 10%, but analogously coded 5262 (tibia and fibula, impairment of), based on the C&P examination, citing malunion of the tibia and fibula with slight knee or ankle disability. Panel members agreed that based on painful, but full ankle motion noted at the VA examination, which was most proximate examination, a 10% rating, but no higher, was supported under analogous code 5299-5262 for slight knee or ankle disability. The panel considered other VASRD codes (knee, ankle, and arthritis), but all were less applicable or not advantageous for rating. Although the panel arrived at a 10% rating recommendation with different VASRD coding than the PEB, there was benefit to the CI, and thus no change was recommended.

The panel agreed that the Category II ankle and tibia/fibula conditions could not be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding). Although the CI had continued left leg and ankle pain, ratings for the residual pain analogous to traumatic arthritis (5010) or tibial impairment (5262) are based on knee or ankle disability or motion. While code 5271 could be used alternatively for painful ankle motion, only a single rating may be given for pain involving the knee and/or ankle due to the tibia/fibula fracture without pyramiding ratings based on the symptom of pain. Panel members agreed that the Category II back diagnosis was a distinct condition from the tibia/fibula fracture and is addressed below. 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 left leg condition.

Contended PEB Condition: Chronic LBP. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The non-medical assessment did not specify the CI’s medical conditions, however, LBP was listed on the profile and failed retention standards. The panel concluded there was a preponderance of evidence that the low back condition was reasonably considered separately unfitting and eligible for rating. The VA rules for rating the spine were changed in September 2002 and again in September 2003 to the current rating rules. However, IAW DoDI 6040.44, the panel must make its rating recommendation based on the rating rules in effect on the date of the CI’s separation from the military in 2002. A 10% rating was supported for characteristic pain on motion, coded 5295 (lumbosacral strain), as noted on the VA examination, the most proximate examination to separation. There was no evidence of muscle spasm, loss of lateral motion, or marked limitation of forward bending to support higher ratings under code 5295. The panel considered other VASRD spine and analogous codes, but all were less applicable and not advantageous for rating. After due deliberation, the panel agreed the preponderance of evidence with regard to the low back functional impairment favors its recommendation as an additionally unfitting condition for disability rating. It is appropriately coded 5299-5295 and meets the VASRD §4.71a criteria for a 10% rating.

BOARD FINDINGS: In the matter of the left leg condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the contended low back condition, the panel agrees it was unfitting and recommends a disability rating of 10%, coded 5299-5295 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	
Chronic Left Leg Pain	5299-5003	10%	
Chronic Low Back Pain	5299-5295	10%	
	COMBINED	20%	

DEPARTMENT OF THE NAVY
SECRETARY OF TI!E NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN REPLY REFER TO,
1850
CORB:003
12 Oct 20

From: To:

Subj:

Ref:

Director, Secretary of the Navy Council of Review Boards 

PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

(a) DoDI 6040.44
(b)	PDBR ltr of 16 Jun 20
(b)	

·	1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy for appropriate action.

2.	On 7 October 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) took action in your case by accepting the recommendation of the PDBR. Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 10% to 20% without re-characterization of your discharge.

3.	For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, has been forwarded to the Navy Personnel Command for appropriate changes to your personnel records and notification to you upon completion.

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