RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xx	BRANCH OF SERVICE:  MARINE CORPS
CASE NUMBER:  PD1201057	SEPARATION DATE:  20011115
BOARD DATE:  20130326

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCPL/E3 (3042/Supply Clerk), medically separated for right thigh liposarcoma.  The CI underwent surgical removal of a right thigh mass, myxoid liposarcoma, in August 1999.  Despite radiation therapy, he could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or meet physical fitness standards.  After determining that the loss of muscle mass and effects of radiation therapy were permanent, the Medical Evaluation Board (MEB) forwarded Stage II, liposarcoma (myxoid) of the right medial thigh and no other conditions for Physical Evaluation Board (PEB) adjudication.  The PEB adjudicated the right thigh liposarcoma condition as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and he was medically separated with a 10% disability rating.

CI CONTENTION:  “I believe my right leg is in worse condition than previously believed the bend in my right leg is limited; the weakness of the leg is now affecting the left leg, by having to overcompensate for the weakness in the right.  I now have arthritis in both knees.  The right leg has scar tissue and a new condition that developed because of the radiation I received in my cancer treatment.  My right leg is limited not only in its flexibility, but it limits my standing, stooping, and squatting, and other daily activities that I do.  I also applied for loss of hearing when I got out, which I also believe should be reviewed.  I also have sleep apnea, which at the time of my enlistment, I did not know I had.  I can provide letters from my roommates in Japan & North Carolina which could verify my sleep condition.”

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 left leg, bilateral knee arthritis, loss of hearing, and sleep apnea conditions are 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 Board for Correction of Naval Records.

RATING COMPARISON:

Service  PEB – Dated 20010926	VA (<1 Month Post-Separation) – All Effective Date 20011116	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Pathologic T2ANXMO G-3, Stage II, Liposarcoma (Myxoid) of the Medial Thigh with Residual Weakness of Thigh Muscles	5012-8526-5314	10%	Right Leg Liposarcoma	7899-7818	10%	20011019	
↓No Additional MEB/PEB Entries↓	Residuals, Right Knee Strain	5299-5262	10%	20011019	
	Not Service-Connected x 2	
Combined:  10%	Combined:  20%	

ANALYSIS SUMMARY:  The Board’s authority, as defined in DoDI 6040.44, resides in evaluating the fairness of the Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation.  The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Right Thigh Liposarcoma Condition.  The CI underwent surgical removal of a 6.5cm right upper medial thigh myxoid liposarcoma in August 1999, followed by radiation therapy to the medial aspect of his right thigh.  When pathology after an initial excision of a 5cm to 6cm mass revealed a liposarcoma, a wide excision was performed and a 12cm by 6cm by 4cm specimen was removed from the CI’s right thigh.  A third surgery was performed in September 1999 to insert a surgical drain into a post-operative seroma.  Radiation therapy was completed in January 2000.  A magnetic resonance imaging in April 2000 noted changes secondary to the radiation therapy but no evidence of neoplasm recurrence.  The CI was noted to have right inguinal adenopathy in September 2000 but biopsy revealed no evidence of disease.  A MEB narrative summary (NARSUM) was completed by oncology approximately 6 months prior to separation.  The physical examination noted a single right inguinal lymph node, skin hyperpigmentation consistent with previous radiation therapy, well-healed incision without mass in the tumor bed, and a soft tissue defect the size of a football in the right thigh.  The examiner opined the CI had “somewhat limited strength and range-of-motion in the right lower extremity” that led to a “decrease in his physical performance and a decrease in his exercise tolerance.”  He also opined that it would not be possible to restore the functional loss, as there were no treatments that can replace his lost muscle mass or reverse the effects of radiation.  There was no evidence of any recurrence of disease.  An MEB NARSUM addendum was completed by orthopedics 3 months prior to separation.  The CI reported weakness that affected walking and any attempts at running; pain in the right thigh; and numbness in the medial right thigh and medial aspect of the right leg.  The exam noted muscle strength of 4/5 in the right quadriceps, adduction, and hamstring; decreased light touch sensation in the distribution of the right femoral nerve, including the right medial thigh and medial aspect of the right lower extremity down to the level of the ankle; and indurated skin consistent with radiation therapy.  The examiner opined the CI’s irreversible functional loss was due to a radiation induced femoral nerve palsy and surgical removal of the adductor muscles of the thigh.  At the VA Compensation and Pension (C&P) exam a month prior to separation, the CI reported pain and weakness in the right leg.  The examiner documented a 20 cm large scar over the medial aspect of the right thigh with “significant underlying tissue defect.”  The examiner noted that there was no limited function of standing and walking and no use of supportive devices.  Physical exam revealed a normal gait and normal neurologic exam.  However, the examiner did not specifically state which muscles and areas of skin were assessed and made general statements that sensation and motor strength were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the right thigh liposarcoma condition with three codes:  5012 (bones, new growths of, malignant), 8526 (femoral nerve paralysis), and 5314 (pelvic girdle and thigh, Group XIV, moderate) at 10%.  The PEB Joint Disability Evaluation Tracking System form notes the CI’s permanent weakness, numbness, and pain and one PEB member noted the CI was “severely limited in his duties as a marine.”  The VA rated the condition analogous to 7818 (malignant skin neoplasms) and assigned a 10% rating.  No specific rationale for using this VASRD code is provided but the VA stated a rating greater than the 10% rating assigned by the PEB was not warranted without any scar tenderness, constant exudation, or itching.  The record does not contain evidence of skin breakdown, ulceration, or constitutional symptoms.  None of the examiners commented on limitation of function or on physical impairment in relation to the scar.  The Board determined that the CI’s scar was not directly related to the CI’s functional impairment at time of separation.  Therefore, rating with this code is not recommended either for the CI’s overall condition or as an additional rating.  Liposarcoma is a fatty tumor and there is no VASRD code for this type of malignancy.  The PEB used 5012, the code for bone cancer and the VA used 7818, the code for skin cancer; neither is technically correct but one should be included in the rating scheme to document that the tumor was the source of the CI’s functional limitation.

The Board considered the CI’s neurologic and muscular impairments, realizing that disability from injuries to the muscles and nerves, may overlap to a great extent and that IAW VASRD §4.14 (avoidance of pyramiding) the evaluation of the same manifestation under different diagnoses are to be avoided.  Additionally, VASRD §4.55 (principles of combined ratings for muscle injuries) states that a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.  In this case, the CI had weakness, numbness, and pain.  While a large portion of his adductor muscle was removed, he also had weakness in his hip flexor and extensor muscles on the MEB NARSUM exam and this was most likely due to the effects of radiation on the femoral nerve.  Therefore, the Board determined the use of the rating criteria for 8526 (femoral nerve, incomplete paralysis) was most appropriate.  While both the service and VA examinations were completed prior to separation, the VA examination appears to be less complete with only general statements about the muscle strength and cutaneous sensation examinations that lack specific data for right lower extremity.  Therefore, greater probative value is assigned to the exam documented in the MEB NARSUM addendum, as it is more complete.  This exam documented 4/5 muscle strength in the right hip flexion, adduction, and extension and decreased light touch sensation in the distribution of the right femoral nerve.  The CI reported symptoms with walking and any attempts at running.  The presence of symptoms with activities with a lower level of exertion (walking) in addition to activities that are more strenuous supports a finding of moderate incomplete paralysis of the femoral nerve and a disability rating of 20%.  While all Board members agreed use of 8526 was most appropriate, the Board also considered rating with 5314 (Group IV muscles) which includes the muscles affected.  However, the record contained no evidence of “debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring” and therefore, this rating scheme did not result in a rating higher than 10% for moderate muscle disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and VASRD §4.14 (avoidance of pyramiding) the Board recommends a disability rating of 20% for the right thigh liposarcoma condition.

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 thigh liposarcoma condition, the Board, by a vote of 2:1, recommends a disability rating of 20%, coded 8526-5314 IAW VASRD §4.124a.  The single voter for dissent (who recommended no recharacterization) did not elect to submit a minority opinion.  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	
Right Thigh Liposarcoma	8526-5314	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120630, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	xx
	Director of Operations
	Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
		                COMMANDER, NAVY PERSONNEL COMMAND
	     	          		           	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 28 May 13 ICO  
          (c) PDBR ltr dtd 22 May 13 ICO  
          (d) PDBR ltr dtd 22 May 13 ICO  
          (e) PDBR ltr dtd 17 May 13 ICO  
          (f)  PDBR ltr dtd 10 May 13 ICO  
          (g) PDBR ltr dtd 17 May 13 ICO  
                                        
1.  Pursuant to reference (a), I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (g).
	
2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a.  former USN:  Disability separation with a final disability rating of 20% (increased from 10%) effective 1 March 2003.

     b.  former USN:  Disability separation with a final disability rating of 20%  (increased from 10%) effective 15 September 2002.

     c.  former USMC:  Disability retirement with a final disability rating of 40% (increased from 20%) and placement on the Permanent Disability Retired List effective 14 January 2004. 

     d.  former USN:  Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 15 November 2002.

     e.  former USMC: Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 31 August 2005.  

     f.  former USMC:  Disability separation with a final disability rating of 20% (increased from 10%) effective 15 November 2001.  

3.  Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.

						  xx
						  Assistant General Counsel
						    (Manpower & Reserve Affairs)