RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2013-01514	
BRANCH OF SERVICE:  MARINE CORPS 	 BOARD DATE:  20150429
SEPARATION DATE:  20041215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Combat Engineer) medically separated for status post (s/p) removal of shrapnel from left hip and shrapnel to both elbows.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty [LIMDU] and referred for a Medical Evaluation Board (MEB).  The s/p removal of shrapnel from left hip and shrapnel to both elbows conditions, characterized as “s/p removal of shrapnel from left hip” and “shrapnel to both elbows,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition.  The informal PEB adjudicated “s/p removal of shrapnel from left hip” as unfitting and rated 10%, citing criteria of the Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be CAT III.  The CI appealed to the Formal PEB (FPEB), which made the following changes “s/p removal of shrapnel form left hip and shrapnel to both elbows” as unfitting, rated 10% and 10% for a combined rating of 20%.  The remaining conditions were determined to be CAT III, status post colostomy with reversal, CAT IV, adjustment disorder, resolved.  

CI CONTENTION:  “Multiple gunshot wounds and shrapnel wounds, my original IPEB board miss rated my wounds.  Both elbows were rated together.”  [sic] 

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

Service FPEB – Dated 20041008	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P Removal of Shrapnel from Left Hip	5299-5003	10%	S/P Shrapnel Wound, Left Hip, with Retained Foreign Bodies	5316	10%	20041028	
Shrapnel from Both Elbows	5299-5003	10%	S/P Shrapnel Wound, Left Elbow, with Retained Foreign Bodies	5305	10%	20041028	
			S/P Shrapnel Wound, Right Elbow, with Retained Foreign Bodies	5305	10%	20041028	
Other x 2 (Not in Scope)	Other X 15		
Combined:  20%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20041221 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  The Board acknowledges that the original VA Compensation and Pension (C&P) examination was referenced, but not available in the evidence before it.  The missing evidence will be referenced below in relevant context; and, it is not suspected that the missing evidence would significantly alter the Board’s recommendations.

Left Hip Condition.  While deployed on 26 March 2003, the CI received a high velocity gunshot wound (GSW) to the gluteal and abdominal regions with associated shrapnel injuries to the left hip.  X-rays revealed a large shrapnel fragment lodged within the femoral neck as well as a small fracture of the superior greater trochanter (a small portion of the top of the femur bone).  He was evacuated from theater and underwent several surgeries for other life-threatening conditions in the immediate post-incident timeframe.  On 28 January 2004, the CI underwent surgery to remove shrapnel from his left hip as well as excision of a greater trochanteric “non-union” fracture.  Post-operatively, he did very well whereby within 6 weeks the CI self-reported being “tremendously better than [he] was preoperatively.”  Repeat X-rays were free of shrapnel fragments.  Orthopedic follow-up on 16 June 2004 (6 months post-operatively and 6 months pre-Service separation), revealed a normal gait and mildly decreased ROM of the left hip.  A Trendelenburg sign was present (indicating weak hip abductors to include the buttock muscles).  His diagnosis remained left hip shrapnel; s/p removal with mild weakness.  The commander’s letter implicated a direct relationship of the CI’s multiple medical conditions to his inability to perform his military duties 

At the MEB narrative summary (NARSUM) (22 April 2004; 8 months pre-separation) the CI reported having the ability to ride the exercise bicycle, jog on the elliptical trainer, and perform swimming.  The physical examination (PE) revealed “good” ROM without pain or crepitus.  Motor and sensation was intact and he ambulated with a non-antalgic gait.  His diagnosis remained unchanged.  Although absent the original pre-discharge VA C&P examination of 28 October 2004 (6 weeks pre-separation), a subsequent VARD indicated 10% impairment rating was adjudicated for “moderate muscle disability” in reference to the left hip condition.  The goniometric ROM evaluations in evidence, which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Hip (Thigh) ROM
(Degrees)	MEB ~ 8 Mo. Pre-Sep
(20040422) 	Ortho ~ 6 Mo. Pre-Sep
(20040616) 	VA C&P ~6 weeks Pre-Sep
(20041028) 	
Flexion (125 Normal)	“Good” ROM”	100	“There was no painful or limited motion of your left hip.”	
Extension (20)		-		
External Rotation (45)		45		
Abduction (0-45)		30		
Adduction (45)		- 		
Comment	no Trendelenburg sign	weakness 
(tredelenburg sign +) 	-	
§4.71a Rating	NR	10%-20%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  Board members first reviewed the PEB’s coding/rating determination in this case.  While the analogous diagnostic code of 5003 (degenerative arthritis) is medically reasonable, the Board considered other physical-based residuals that may be of greater significance near the time of service separation.  The VA rated 10% under the physically-based muscle code of 5316 (Group XVI; flexion of the hip) at “moderate” impairment.  Board members also considered examination probative value (PV) between the three charted encounters listed above and determined that both the MEB and the transcribed VA exam findings were not to the level of detail as compared to the Orthopedic follow-up at 6 months pre-separation and therefore, a greater degree of PV was assigned to that examination.

The action officer explained that the Trendelenburg sign (associated with the probative exam), strictly tests for weakness in the abductor muscles of the hip, pelvis, and thigh, and a positive test with noted weakness was adequately described by orthopedics.  Given such pathology coupled with positive physical findings, Board members agreed that the VA’s approach in rating under a VASRD muscle code was appropriate.  The Board agreed that the level of musculoskeletal impairment in this case was below “moderately severe” and more appropriately described as “moderate” at 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s rating level adjudication for the left hip condition, but did recommend a coding change to 5216 (VA’s code).  

Bilateral Elbow Condition.  Pursuant to the same firefight incident while deployed, the CI also received a GSW to the right elbow and shrapnel injury in the left elbow.  There was no comment regarding separate exit wounds.  X-rays revealed approximately 50% of the olecranon process (tip of the ulna bone forming the “point” of the elbow) was absent.  He underwent initial surgical debridement of the right elbow and a second procedure one year later to remove small bone fragments.  A post-separation VA encounter dated 11 April 2005 indicated a shrapnel wound over the lateral aspect of the left arm; X-rays revealed metal near the distal left humerus.  There was full ROM of the elbow.       
 
The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a single 10% rating under 5003 code (degenerative arthritis), whereas the VA separately rated the left and right elbows under VASRD muscle code 5305 (Group V; elbow supination) at 10% each citing retention of small metallic fragments.  The Board first considered whether each elbow condition remained separately unfitting, having decoupled them from the combined PEB adjudication.  Board members considered the objective and abnormal finding of retained metal near the left elbow and raised the question of whether the left elbow was reasonably justified as separately unfitting near the time of Service separation.  The well-established principle for fitness determinations is that they are performance-based.  Although the recorded evidence overwhelmingly reflected that the right elbow was associated with more symptomatology, pathology and impairment than the left elbow, Board members considered and agreed that the resultant persistent pain from either elbow would have logically been associated with significant disability and therefore, recommends separate impairment ratings.  After due deliberation, Board members agreed that the VA’s choice of muscle code 5305 was appropriate and recommends a 10% impairment rating for each elbow for a combined 20%.  

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 and or DoDI 1332.39 were exercised.  In the matter of the left hip condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB rating adjudication, but does recommend a change in VASRD coding from 5299-5003 to 5316.  In the matter of the bilateral elbow condition, the Board unanimously recommends a disability rating of 10% for the right elbow and 10% for the left elbow coded 5305 IAW VASRD §4.73.  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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: 

UNFITTING CONDITION	VASRD CODE	RATING	
Left Hip Condition	5316	10%	
Shrapnel; Right Elbow Condition 	5305	10%	
Shrapnel; Left Elbow Condition	5305	10%	
COMBINED
(w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

			XXXXXXXXXXXXXXXXXXXX
President 
DoD Physical Disability Board of Review

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: 	(a) DoDI 6040.44
(b) PDBR ltr dtd 1 Jul 15 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 15 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 12 Jun 15  ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a.	XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.

b. XXXXXXXXXXXXXXXXXXXX, former USN:  Placement on the Permanent Disability Retired List with a 70 percent disability rating (increased from 10 percent) effective date of discharge.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)