RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200921 DATE OF PLACEMENT ON TDRL: 20020219 BOARD DATE: 20130207 DATE OF PERMANENT SEPARATION: 20031109 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92R1P/Supply Sergeant), medically separated for status post (s/p) median nerve partial transection and repair (right upper extremity). The CI sustained a near amputation to his right upper extremity after a crush injury in a motor vehicle accident (MVA) in October of 1999 and underwent multiple surgeries for repair of nerve, tendon and vascular damage as well as forearm fractures. He could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent U3 L3 profile and referred for a Medical Evaluation Board (MEB). Four diagnoses related to the residuals of the right upper extremity to include the elbow, wrist, finger and median nerve laceration were forwarded to the PEB. Glaucoma and latus degeneration bilaterally conditions, identified in the rating chart below, were also forwarded by the MEB. The Informal Physical Evaluation Board (IPEB) adjudicated the median nerve laceration, reduced range-of-motion (ROM) at the wrist and muscular atrophy below the elbow, s/p near amputation of right upper extremity with multiple segmental fractures and nerve and vessel damage as unfitting, rated 30%. Glaucoma and latus degeneration conditions were determined to be not unfitting. The CI was placed on Temporary Disability Retired List (TDRL) with ratings as reflected in the chart below. At TDRL reevaluation approximately 17 months later, the PEB adjudicated the s/p median nerve partial transection and repair, as unfitting, rated 10% with likely application of the Veterans Administration Schedule for Rating Disabilities (VASRD). The IPEB was silent to the remaining right upper extremity residuals; the elbow, wrist and finger which they had adjudicated upon TDRL entry. The CI appealed to the United States Army Physical Disability Agency (USAPDA), which affirmed the PEB findings; and was then medically separated with a 10% disability rating. CI CONTENTION: “1.) Degenerated bone in the lumbar spine 2.) lower right arm and wrist was broken in half 3.) metal plate in right arm.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The conditions lower right arm and wrist, and metal plate in right arm as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the ratings for the unfitting conditions. The degenerated bone in the lumbar spine condition is not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Service Board for Correction of Military Records. Also IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation. TDRL RATING COMPARISON: Service IPEB – Dated 20030926 VA* – All Effective Date 20020220 Condition Code Rating Condition Code Rating Exam On TDRL – 20020219 TDRL Sep. Median Nerve Laceration, Reduced Range of Motion at the Wrist and Muscular Atrophy Below the Elbow, Status Post Near Amputation of Right Upper Extremity with Multiple Segmental Fractures, Nerve and Vessel Damage 8515 30% -- Residuals of Right Arm Injury, Status Post Open Reduction, Internal Fixation, Fracture of Right Distal Ulna and Radius, with Degenerative Joint Disease 5010-5213 30% 20020731 Degenerative Joint Disease of The Right Wrist and Hand, Residuals of Injury from Motor Vehicle Accident 5010-5215 10% 20020731 Status Post Median Nerve Partial Transection and Repair, with Good Motor Function and Residual Painful Paresthesias 8515 10% Latus Degeneration Bilaterally Not Unfitting - Lattice Degeneration 6099-6011 0% 20020731 Glaucoma Suspect Not Unfitting - No VA Entry .No Additional MEB/PEB Entries. Degenerative Joint Disease Of The Lumbosacral Spine 5003 10% 20020731 Not Service Connected x 1 20020731 Combined: 10% Combined: 40% ANALYSIS SUMMARY: The Board acknowledges the CI's contention suggesting that ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service-connected by the VA). While the Disability Evaluation System (DES) considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The Department of Veterans Affairs (DVA), however, is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. In TDRL cases, the Board must also adhere to the DES standard that only those conditions which were present and unfitting at the time of temporary retirement may be considered for compensation and rating at the time of permanent separation or retirement. The Board wishes to clarify that, in cases involving a period of TDRL, its recommendations regarding the appropriateness of PEB fitness adjudications must be premised on evidence referable to the time of placement on TDRL. It should be noted, however, that conditions determined to be unfitting at the time of temporary retirement are subject to a change in that determination (i.e., no longer unfitting) at the time of permanent separation. In cases encompassing a period of TDRL, although the Board’s review of fitness adjudications is relevant to the time of temporary retirement, the Board’s rating recommendations are based on severity evidenced at the time of permanent separation. The Board must therefore judge whether the degree of physical impairment at the time of separation would render the CI unfit for continued military service within the broad requirements of his MOS. The PEB did not specifically adjudicate the remaining TDRL entry right upper extremity residuals; the elbow and finger. Thus a lengthy deliberation ensued if the evidence supports the right upper extremity residuals; the elbow finger as unfitting conditions on exit of TDRL and therefore should be included in the Boards permanent rating recommendation or if the Board should approach the residuals as a de facto service determination. The Board unanimously agreed the evidence supports the elbow and finger as unfitting on TDRL entry and remained unfitting as the PEB was silent to any adjudication thereafter. Right Upper Extremity Condition: The narrative summary (NARSUM), 2 years prior to separation, noted the CI had a near amputation of his right upper extremity after an MVA in October 1999. He suffered a complex open wound of his right elbow, right forearm with an open ulnar fracture and closed radial fracture both with segmental defects as well as a right wrist laceration with flexor tendon, median nerve, and ulnar artery injuries with closed right 3rd metacarpal interarticular fracture, right 4th metacarpal head fracture, and closed right 5th metacarpal phalangeal joint dislocation. He also sustained full thickness skin loss over his right antecubital fossa as well as approximately 25% of the dorsal aspect of his forearm. The profile on 25 October 2001 identified both arm and hand pain as the limiting conditions for the inability to carry and fire a rifle. The commander’s statement on 11 June 2001 stated the CI was able to perform his duties within the limits of his profile. There were three goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the charts below. Right Wrist ROM in degrees (Normal) MEB ROM ~ 2 years. Pre-Sep MEB to TDRL ~ 2 years. Pre-Sep VA C&P ~ 15 Mo. Pre-Sep TDRL Re-Eval ~ 4 Mo. Pre-Sep Flexion (80) 70 70 60 - Extension(70) 70 - 40 - Comment Wrist pain , stiffness Cannot type Cannot use manual screwdriver. +R 4th digit decreased sensation. Weaker R grip. Normal sensation and strength. No muscular deficit. No skeletal deficits. No vascular deficits. +Pain on pronation. +Pain with prolonged writing. Normal sensation. +Pain on extreme motion. +Tenderness. +Crepitus. Normal strength. Normal vascular exam. §4.71a Rating 10%* 10%* 10% 10%* §4.124 Rating 30% 30% 10% 10% *conceding §4.59 painful motion Right Elbow ROM in degrees (Normal) MEB ROM ~ 2 years. Pre-Sep VA C&P ~ 15 Mo. Pre-Sep TDRL ReEval ~ 4 Mo. Pre-Sep Flexion (145) 140 150 160 Extension (0) 5 10 10 Pronation (80) 45 10 70 Supination (85) 80 90 80 Comment +R 4th digit decreased sensation. Weaker R grip. Normal sensation and strength. No muscular deficit. No skeletal deficits. No vascular deficits. +Pain on pronation. +Pain with prolonged writing. Normal sensation. +Pain on extreme motion. +Tenderness. +Crepitus. Normal strength. Normal vascular exam. §4.71a Rating 20% 30% 10%* The NARSUM examination 2 years prior to separation revealed sensory loss over the well healed skin grafts over the dorsal aspect of the forearm, antecubital fossa, and flexor surface of the mid forearm. There were multiple well healed scars from surgery as well traumatic scars below the antebrachium. Atrophy of the musculature below the elbow, muscle loss in the antecubital fossa and extensor surface was noted. There was decreased sensation of the right ring finger globally, with scissoring of the right small finger. Strength testing with dynamometer was 22, 22 right hand, and left 55, 50 kilograms. X-rays, on 31 July 2002, revealed evidence of right elbow moderate arthrosis with degenerative changes compatible with old trauma; old right radius midshaft fracture with plate and screws, some deformity of the ulna from old trauma; and right wrist degenerative changes secondary to previous trauma. At the VA Compensation and Pension (C&P) exam, 15 months prior to separation, the CI reported pain on movement of right hand, trouble with pronation of right forearm, pain on lifting heavy weights, increased exertion, and repetitive movements of the right upper extremity. The CI reported he could write and take care of all his activities of daily living. Examination revealed extensive skin grafting of the right upper extremity 10cm (3.9 in) by 10cm (3.9 in) on the cubital fossa, and 15cm (5.9 in) by 10cm (3.9 in) on the right forearm. There were normal pulses; strength was decreased upon pronation 4+/5 of the right forearm, otherwise normal strength, muscle bulk and tone, reflexes, and sensation. ROMs are summarized above. It was the C&P examiner’s opinion that the CI was fully employable and did not have any functional impairment in carrying out his activities of daily living. The CI was employed a Sizemore security guard. At the TDRL re-evaluation exam, 4 months prior to separation, the CI reported he had been able to return to work at a lumberyard to include operation of heavy equipment such as chain saws with his right hand effectively. He reported continued painful paresthesias of his right thumb, index finger, middle finger, and radial side of his ring finger especially with work and gripping things, he did not report dropping objects or notable weakness of his hand or forearm. Physical examination revealed formation of a good composite fist with a stiff small finger PIP joint. Sensation was intact to two point discrimination; strength was normal 5/5 strength of right wrist extensors, wrist flexors and thumb extensors and flexors. The CI had normal vascular examination of the hand with 2 second capillary refill and 2+ pulses. No wrist ROMs were recorded. The Board directs attention to its rating recommendation based on the above evidence. In consideration of all rating recommendations the Board notes the CI is right hand dominant and rating considerations will be for major/dominance. The PEB assigned a 30% rating at the time of TDRL entry for the 4 unfitting right upper extremity conditions (elbow, wrist, median nerve and fifth finger), forwarded by the MEB, and coded under 8515 (median nerve). However the Board acknowledges this code does not capture the unfitting residual pathology of the elbow or the fifth finger. Therefore the Board considered the evidence for the elbow and fifth finger for rating determinations upon entry onto TDRL. The Board agreed the evidence supports the 20% rating criteria coded 5213 (Supination and pronation, impairment of) for the right traumatic osteoarthritis of the elbow for motion lost beyond the last quarter of the arc (did not pass beyond 60 degrees) yet did pass the middle of the arc (pass 40 degrees). The Board next agreed that the evidence supports the only rating criteria of 0% coded 5227 (Ring or little finger, ankylosis of) for the right small finger central slip injury. For its permanent rating recommendation, the Board agreed the TDRL exam is most proximate to separation, reflects a continual improvement in the rehabilitation of the right upper extremity residuals and assigns this exam most probative value. The PEB assigned a 10% rating coded 8515 (paralysis, the median nerve) for mild periodic painful paresthesias in the thumb, index, middle and previous measured weakness of right hand. The Board notes the CI is capable of working in a lumberyard operating heavy equipment and while there is increased pain and weakness with use of the right wrist there are no objective neurologic findings, functional or occupational impairments, or incapacitating episodes in the evidence to meet the 30% higher rating for moderate paralysis. The Board also considered functional loss of the muscle groups VII and VIII (VASRD diagnostic codes 5307 and 5308). The Board agreed under this code the 30% rating does not support the remarkable recovery and mild functional impairments evidenced by the record. The Board next considered the VA chosen musculoskeletal codes for both the wrist 5215 (limitation of motion of the wrist) rated 10% for painful limitation of motion and the elbow 5213 (impairment of supination and pronation) rated 30% for pain limited motion analogous to the 5010 code (arthritis due to trauma) which is consistent with the VA exam at that time. For the purpose of rating disability from arthritis, elbow, and wrist are considered major joints. There is a noncompensable ROM impairment of the right wrist and elbow, and the Board agreed that there is satisfactory documentation of painful motion of both joints with degenerative X-ray evidence in the pre-separation examinations to merit application of a minimal compensable rating (10%) under the 5010 code. With regards to the wrist the Board agreed the musculoskeletal or neurological codes, 5215 and 8515 respectively, achieve the same 10% rating for the right wrist. However, the Board found both schedules and codes could not be applied to the same wrist joint IAW VASRD §4.14 avoidance of pyramiding. The AO recommends the 8515 code as it clinically subsumes not only the pain disability but also the subjective weakness with use and sensory residuals in the thumb, 2nd and 3rd digits. The Board next considered the 5213 code for limited painful pronation of the elbow and agreed the evidence does not support the 20% higher rating as “motion lost beyond last quarter of arc, the hand does not approach full pronation” requires a measured pronation of less than 60 degrees. Finally the Board considered the residuals of the small finger included stiffness of the proximal interphalangeal (PIP), painful paresthesias of the radial side of ring finger and a normal grip. The Board agreed the evidence supports a 0% rating coded 5227. The Board also considered an additional rating for residual scars from seven surgeries and scars from the two skin grafts. By precedent, the Board does not recommend separation rating for scars unless their presence imposes a direct limitation on fitness. There are trophic changes of the skin due to skin grafting and scarring from multiple surgeries and the traumatic injury however the Board agreed the evidence does not support functional loss or ratable criteria using VASRD §4.118—Schedule of ratings–skin. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.45(f) (the joints) and §4.40 functional loss the Board recommends a permanent disability rating for the right upper extremity residuals; 10% for the right wrist condition 8515, 10% for the right elbow condition (5010-5003) and 0% for the fifth finger condition for a combined 20% rating. Contended PEB Conditions: The contended conditions adjudicated by the PEB referred from the MEB and contended by CI’s were: lower right arm and wrist was broken in half and metal plate in the right arm conditions. These conditions were considered above under the right upper extremity conditions. There are no other contended conditions for consideration. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the right upper extremity condition, the Board unanimously recommends a TDRL entry disability rating for the median nerve partial transection and repair of 30% coded 8515, for the post traumatic osteoarthritis right elbow 20% coded 5010-5213 and for the right small finger central slip injury 0% coded 5227 for a combined 40% rating IAW VASRD §4.124a and §4.71a, respectively. For its permanent recommendation of the right upper extremity condition, the Board unanimously recommends for the median nerve partial transection and repair of 10% coded 8515, for the post traumatic osteoarthritis right elbow 10% coded 5010-5003 and for the right small finger central slip injury 0% coded 5227 for a combined 20% rating IAW VASRD 4.124 and 4.71a, respectively. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING TDRL PERMANENT Median Nerve Partial Transection and Repair 8515 30% 10% Post Traumatic Osteoarthritis Right Elbow 5010-5213 20% -- 5010-5003 10% Right small finger central slip injury 5227 0% 0% COMBINED 40% 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120607, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxx, AR20130005076 (PD201200921) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to constructively place the individual on the Temporary Disability Retired List (TDRL) at a combined rating of 40% rather than 30% for the period 20 February 2002 to 2 November 2003 and then following this period no recharacterization of the individual’s separation but modification of the permanent disability rating of 10% to 20%. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum as follows: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay. b. Providing orders showing that the individual was separated with a permanent combined rating of 20% effective the day following the TDRL period with no recharacterization of the individual’s separation. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will provide 40% retired pay for the temporary disability retired period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)