RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01784
BRANCH OF SERVICE:  Army	BOARD DATE:  20150306
SEPARATION DATE:  20050811

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantry) medically separated for scars and an Achilles tendon rupture condition.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “status post soleus muscle flap to right leg wound,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “status post soleus flap/skin graft right ankle,” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals but after administrative review the US Army Physical Disability Agency issued a revised PEB and adjudicated “scars, other than head, face, or neck, that are deep or that cause limited motion, status post soleus flap” and “Achilles tendon rupture,” as unfitting, rated 10% and 10% respectively and he was medically separated.

CI CONTENTION:  “Additional claims pending.”

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 VASRD 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:

Revised PEB – Dated 20050803 | VA - (3 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Scars | 7801 | 10% | Shell Fragment Wound Scar, Right Anteromedial Lower Leg | 7804 | 0% | 20051123
Achilles Tendon Rupture | 5399-5311 | 10% | Shrapnel Wound Injury with Resultant Muscle Flap, Right Gastronemius (Muscle Group XI) | 5311 | 10% |
| | | Foot Drop w/Loss of Sensation, s/p Shrapnel Wound Injury, Right Lower Leg… | 8521 | 20% |
Other x 0 (Not In Scope) | Other x 6
RATING:  20% | RATING:  60%
*Derived from VA Rating Decision (VARD) dated 20060509 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Scars Condition.  The CI sustained injuries from hand grenade shrapnel fragments in December 2004 while deployed to Iraq.  A wound on the right anterior lower leg was of sufficient size and depth that a surgical flap and skin graft was required for coverage and healing.  This procedure was performed on 10 January 2005 and involved use of part of the soleus muscle (a muscle in the calf).  During the procedure, the Achilles tendon sustained a partial laceration which was repaired at that time.  During a three months convalescent period, the CI’s right leg healed well with physical therapy.

The MEB physical exam on 8 April 2005 (4 months prior to separation) noted the wound to be well-healed.  The narrative summary (NARSUM) on 6 May 2005 (3 months prior to separation) noted the surgical wound was healed and stable.  At an evaluation by physical therapy (PT) on 12 July 2005 (a month prior to separation) the CI stated he was having no pain.  The examiner reported that the dimensions of the scarring of the flap and graft areas were 62 square centimeters (approximately 9.5 square inches).

A VA Compensation and Pension (C&P) exam performed 3 months after separation noted a scar on the anteromedial aspect of the right lower leg measuring 63 square centimeters.  The scar was not painful.  Although the margin was reportedly tender, the scar was also described as having no feeling.  The margin of the scar was adherent to underlying tissue.  There was no breakdown.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 7801 code (scars that are deep and nonlinear) for the right leg scar while the VA also rated the scar at 10%, but used the 7804 code (scars, unstable or painful).  While the VA also assigned a 0% rating for multiple other scars, the PEB’s rating addressed only the unfitting right leg scar.  The next higher 20% rating under code 7801 requires “area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm).”  Since the scar was 9.5 square inches, a higher rating was not warranted via this path.  Using the 7804 code, the next higher 20% rating requires three or four scars that are stable or painful.  Board members agreed this stipulation was not met.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the scar condition.

Achilles Tendon Rupture Condition.  As elaborated above, during the surgical procedure that created the muscle flap for coverage of the leg wound, the Achilles tendon sustained a partial laceration.  The operative report stated that the tendon “was not divided through its full thickness at any point.”  Intra-operative assessment of the tendon prior to laceration repair showed that it was functionally intact.

A PT evaluation on 8 March 2005 (5 months prior to separation) noted that the CI would walk 1/4 - 1/2 mile before the onset of Achilles tendon pain.  He walked without crutches.  At a PT follow-up on 4 April 2005 (4 months prior to separation), the CI reported that he was unable to run “due to limits with motion.”  Exam noted a normal gait and an ability to stand on the right leg alone for 60 seconds.  Right ankle dorsiflexion was 2 degrees and left was 8 degrees (normal to 20 degrees).  Right ankle dorsiflexion strength was mildly reduced, and he could hop on the leg without pain.  He could perform 10 unilateral heel raises.

At the MEB exam 4 months prior to separation the CI reported limited motion of his right leg and foot.  There was absence of sensation in an area below the level of the wound on the anterior aspect of the leg and limitation of right foot dorsiflexion was observed.  The NARSUM, as reported above, noted that the CI was “essentially pain free except when running” and that a physical therapist reported improved dorsiflexion of the right foot to the point that a normal gait pattern was attained.  Minor pain with exertion did not require medication.  Exam showed the CI to be walking “with an essentially normal gait.”

The PT evaluation on 12 July 2005 (a month prior to separation) showed right ankle repetitive plantar flexion measurements of 40, 40 and 45 degrees (normal to 45 degrees) and dorsiflexion of 5, 5 and 5 degrees.  The examiner stated that there was no painful motion, and that the mild limitation of motion present was due to the muscle flap and skin graft.

At an outpatient VA clinic visit on 6 September 2005 (a month after separation), the CI stated that he currently had no pain and denied chronic pain.  While the absence of sensation of the medial aspect of the right leg was noted, muscle strength was reported as normal.  At a follow-up VA clinic visit on 7 October 2005, the CI stated that his leg injury affected his ability to walk long distances.

At the VA C&P examination 3 months after separation, the CI reported some pain and cramping of the right lower leg with repetitive use.  Exam showed a limping gait.  Although a “moderate right-sided foot-drop” was reportedly present, ankle dorsiflexion was measured at 25 degrees and plantar flexion 30 degrees.  The examiner stated that “muscle strength of the right lower leg is moderately reduced” but strength of specific muscles was not reported.  Although decreased sensation on the medial aspect of the lower leg was noted, no sensory disturbance on the lateral leg was reported.  Atrophy of the anterior leg compartment muscles was also not reported.  This examiner, who also performed the scar exam described above, implied that injury to the right common peroneal nerve caused a foot drop.

At another C&P exam 3 months after separation the CI reported that his back bothered him if he stood for 20 minutes, walked 4 blocks or went up or down stairs.  Examination reported normal neurologic findings.  However, he was noted to limp on the right leg.  At a VA clinic follow-up visit on 22 December 2005 (4 months after separation) the CI informed his provider that he “walks with a limp and trips and falls after a long walk.”  A physical therapist reportedly stated he required a brace to “prevent falls and foot drop in the future.”  The CI denied leg pain.

The CI was evaluated by PT on 9 February 2006 (6 months after separation) for weakness and tiredness of the right leg and foot.  He worked full-time, but experienced tiring of the right leg and foot after being on his feet for a prolonged time.  Exam showed normal range-of-motion of right ankle dorsiflexion and plantar flexion.  Strength of dorsiflexion and plantar flexion was mildly reduced, and foot eversion strength was normal.  An ankle brace was prescribed to improve muscle stability.  The CI presented to PT on 27 February 2006 (6 months after separation) to pick up an ankle brace.  He was “still experiencing weakness w/ prolonged WB (weight bearing).”  At a C&P exam on 17 April 2006 (8 months after separation) the examiner observed the CI to walk with a normal gait. 

The Board directed its attention to a rating recommendation based on the above evidence.  The PEB assigned a 10% rating analogously coded to 5311 (Muscle Group XI).  This muscle group involves calf muscles which affect propulsion and plantar flexion of the foot.  The VA likewise assigned a 10% rating using the same code, but additionally rated foot drop under the 8521 code (paralysis of common peroneal nerve) at 20%.  The PEB form cited limitation of ankle dorsiflexion per the 5271 code (ankle, limitation of motion) as rationale for its rating, and further stated that limitation of ankle motion was due to the partial laceration of the Achilles tendon, and not to deep scarring.  First, the Board considered an additional rating for foot drop.  This condition is caused by nerve injury, and results in an inability to dorsiflex the foot.  Unopposed action of the calf muscles results in a foot that droops when lifted off the ground.  Board members noted however that between the time of injury and separation a nerve injury was never diagnosed.  Furthermore, a foot drop is not consistent with the ability to dorsiflex the ankle to 25 degree (5 degrees greater than normal) as noted by the C&P examiner, or with normal foot eversion strength.  Finally, a foot drop is associated with a gait described as “high stepping.”  However, most observers noted a normal gait, while the C&P examiner noted a limping gait; neither of these is consistent with foot drop.  The Board concluded that any limitation of ankle motion was on the basis of the soleus muscle flap positioning and associated scarring, as noted by the physical therapist in July 2005.  Therefore, limitation of ankle motion is properly accounted for under the PEB and VA’s muscle code; the addition of a peripheral nerve code constitutes pyramiding, which is to be avoided IAW §4.14.  Regarding the reasonably chosen 5311 code, “moderately severe” muscle impairment is required for a 20% rating.  Board members debated if key elements required under VASRD §4.56 for a “moderately severe” assessment were in evidence.  The CI required approximately 3 weeks of hospitalization for surgical care and reported some cardinal signs of muscle disability, such as weakness and fatigue.  The Board noted however that objective findings showed no loss of deep fascia or normal firm resistance of muscle (“moderately severe” stipulations), but debated if the “lowered threshold of fatigue after average use” stipulation of the “moderate” rating more accurately described the condition.  After considerable deliberation, the Board majority concluded that the loss of soleus muscle function as a consequence of the need for a flap of sufficient size to cover the wound resulted in a corresponding impairment of strength and endurance (reflected in the need for a brace) which was more accurately described by “moderately severe” disability.  Therefore the 20% rating was warranted.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the Achilles tendon rupture 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 scar condition and IAW VASRD §4.118, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the Achilles tendon rupture condition, the Board by a majority vote recommends a disability rating of 20%, coded 5399-5311 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION | VASRD CODE | RATING
Scars, Other Than Head, Face, or Neck | 7801 | 10%
Achilles Tendon Rupture | 5399-5311 | 20%
COMBINED | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131023, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20150011075 (PD201301784)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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			     XXXXXXXXXXXXXXX
				     Deputy Assistant Secretary of the Army
				          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-01784