RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01887
BRANCH OF SERVICE:  Army	BOARD DATE:  20140604
SEPARATION DATE:  20041120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (12B/Combat Engineer) medically separated for a gunshot wound (GSW) to the left thigh.  Despite extensive surgery and physical therapy, the thigh 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The thigh condition, characterized as “chronic left thigh pain secondary to abundant callus and quadriceps adhesion” and “saphenous nerve palsy (sensory) after gunshot wound,” were the only two conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic left thigh pain secondary to abundant callus and quadriceps adhesion” and “saphenous nerve palsy (sensory) after gunshot wound to left thigh” as unfitting, rated 0% and 0%, respectively, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy and the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “The conditions of the gunshot wounds have not improved, hearing loss, PTSD [posttraumatic stress disorder], TBI [traumatic brain injury], depression, memory loss, requiring use of assistive devices (cane/hearing aids).  Long term continuing treatment and tests such as cardiac problems/EKGs and repeated neuro testing, MRIs and CT scans.  Abnormal bowel movements with soft stools and transient pain.  High blood pressure.  The gunshot wounds were the only factors considered for percentage during the unfitting service conditions percentage.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting thigh and saphenous nerve conditions are addressed below.  The contended hearing loss, posttraumatic stress disorder, traumatic brain injury, depression, memory loss, cardiac problems, intestinal problems and high blood pressure are not within the DoDI 6040.44 defined purview of the Board.  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 Military Records. 

RATING COMPARISON:

Service IPEB – Dated 20040823 | VA - (1 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Saphenous Nerve Palsy (Sensory) After GSW to the L Thigh | 8799-8727 | 0% | Muscle Group XII; Residuals of GSW L Calf, | 5312 | 10% | 20041014
| | | Scar Lateral Aspect Left Calf; Residuals GSW | 7801 | 10% | 20041014
| | | Scar Medial Aspect of Left Calf; Residuals GSW | 7801 | 10% | 20041014
Chronic L Thigh Pain Secondary to Abundant Callus and Quadriceps Adhesion | 5099-5003 | 0% | Muscle Group XIII; Residuals GSW L Thigh | 5313 | 40% | 20041014
| | | Scar Lateral Aspect Left Thigh; Residuals GSW | 7801 | 10% | 20041014
| | | Scar Medial Aspect Left Thigh; Residuals GSW | 7801 | 10% | 20041014
No Additional MEB/PEB Entries | Other x 1 | 20041014
Combined:  0% | Combined:  70%
Derived from VA Rating Decision (VARD) dated 20041215 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate 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 to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Saphenous Nerve Palsy (Sensory) to the Left Thigh.  A review of the service treatment record revealed the CI sustained gunshot wounds to the left thigh and left leg while deployed to Afghanistan on 26 January 2004 that resulted in a Type II open mid shaft femur (thigh bone) fracture with the exit wound creating a saphenous nerve palsy and a soft tissue injury with saphenous nerve palsy in the left tibia (lower leg/calf area).  Initial treatment consisted of irrigation and debridement (I&D) and external fixation placement.  He underwent removal of the external fixation along with IM nailing (intramedullary rod placement) and manipulation of the left knee under anesthesia on 5 February 2004.  On 10 February 2004, sensation testing was grossly intact “including aspects of the superficial peroneal, saphenous, plantar and sural distributions.”  Initially the range-of-motion (ROM) of the knee was limited to 95 degrees [of flexion] that required further surgery on 13 May 2004 (see below).  Pre-operatively, he was noted to have “Distal more light touch sensation is intact in the left lower extremity except over the saphenous distribution.”  The narrative summary (NARSUM) noted a physical examination performed on 6 April 2004 that indicated “Distal motor and light touch sensation examination in the left lower extremity is intact except for decreased light touch sensation along the saphenous nerve distribution [and] abundant palpable callus in the left thigh.”  His duty restrictions included no running, ruck or road march.  At the MEB exam dated 1 April 2004, the CI reported “Broke my left femur…Put rod, screw(s) in” and “I got shot overseas been hospital[ized] …put rod, screws in my leg.”  The MEB physical exam noted “decreased ROM left leg deformity, left thigh mild edema, left thigh left hip inferior to right hip” and multiple scars of the leg and thigh.”  The commander’s statement of 1 April 2004 indicated the CI was unable to stand for extended periods of time, to wear a TA-50 or carry any weight.  NARSUM exam from 28 July 2004 indicated mild tenderness to palpation in the thigh that was noted in the prognoses section to be from moderate amount of callus.  ROM of the left knee was 0-120 degrees (normal 0-140 degrees).  “There continues to be no light touch sensation from the medial thigh to the medial knee to the medial calf down into the medial aspect of the foot.  The foot is pink and warm.”

At the VA Compensation and Pension (C&P) examination performed on 14 October 2004, a month prior to separation, exam indicated normal gait and station, normal knee ROM of 0-140 degrees and detailed the scars.  The examiner indicated “the major problem is the saphenous nerve palsy [secondary to the exit wound], and this is sensory deprivation.  This does give him a significant amount of physical impairment.  This keeps him from being able to run or ruck march.”

The Board directs attention to its rating recommendation based on the above evidence.  Of the injuries sustained as a result of the gunshot wounds, the CI’s unfitting diagnosis, which was considered “the major problem” by the VA C&P examiner, was the saphenous nerve injury resulting in a palsy associated with a sensory deprivation (loss and/or disturbance of sensation of the skin of the inner thigh and leg).  The Informal PEB (IPEB) rating under §4.124a with code 8727 (Neuralgia, Internal saphenous nerve equal to Paralysis of:  mild to moderate) was 0%.  VASRD §4.124 states that for neuralgia ratings there is a maximum equal to moderate incomplete paralysis.  With an examination that indicated “decreased light touch sensation,” a higher rating of 10% for severe to complete paralysis would seemingly not be warranted, although the VA examiner added that “it does give him [the CI] a significant amount of physical impairment.”  However, since the CI could not stand for an extended period, run, or carry any weight, the limitations of which resulted from all of his injuries, it is not unreasonable, but for the fact that the loss was sensory not motor, that a 10% rating could be applied especially since the nerve was injured in both the thigh and leg.  A 0% rating (mild to moderate) is a better fit since his limitations encompassed the full extent of the gunshot wounds rather than the nerve palsy and especially since there was no explicit VA rating for this condition in spite of the statement in the record that it was “the major problem.”  However, the VA apparently addressed the saphenous palsy indirectly by its use of the muscle group and scar codes discussed below.

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 adjudication for the saphenous nerve palsy (sensory) to the left thigh condition.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

Chronic Left Thigh Pain Secondary to Abundant Callus and Quadriceps Adhesion.  As a result of the aforementioned gunshot wound to the left thigh and the subsequent multiple surgical interventions including incisions & drainage’s.  A radiology report dated 2 February 2004 noted a poorly marginated localized radiolucency in the proximal tibial metaphysis (bone below the knee), which was suspicious for a bullet track.  X-rays of the left femur on 3 February 2004 revealed multiple small metallic fragments tracking obliquely mediolateral (side to side) across the fracture site in the soft tissues.  Post placement of the intramedullary rod, the CI developed abundant callus tissue and quadriceps adhesions requiring surgery on 13 May 2004 that included manipulation under anesthesia, an arthroscopic synovectomy (removal of part of the membrane in the joint) for his left knee arthrofibrosis (scarring), callus debridement and an open “quad plasty” (quadricepsplasty) (surgical procedure to improve the ROM limited by a contracture or adhesions).  A muscle splitting approach to the vastus lateralis (a portion of the quadriceps) to localize a large amount callus, which was debrided from the anterolateral portion of the femur and the quadriceps adhesions were released and additional callus was removed.  As a result of the procedures and further manipulation of the knee, it could be moved to 135 degrees.  Debridement tissue from the left knee and multiple irregular portions of bone 9 x 7 x 3 cm in aggregate labeled “callus left femur” were identified in a pathology report dated 13 May 2004.  Physical therapy examinations for the knee flexion ROMs varied from 120 degrees-130 degrees in June-July 2004 down to 110 degrees on 13 September 2004, 2 months prior to discharge.  The NARSUM for the Medical Board date 28 April 2004 noted “abundant palpable callus in the left thigh.”  Additionally, the leg lengths were equal as was rotation of the bilateral lower extremities.  His femur had healed, but “his quadriceps adhesion limiting knee flexion have caused him significant difficulty despite the recent quad plasty and aggressive physical therapy.”  His duty restrictions included no running, ruck or road march.  An MEB NARSUM addendum dated 28 July 2004 indicated a week post-operatively “hip ROM from 0-90⁰, pain at extreme flexion.  Internal rotation to approximately 10⁰ and external rotation to approximately 20⁰, abduction to 25⁰” and “knee ROM 0-95⁰.”  By 28 July 2004, the CI’s femur fracture healed with an acceptable alignment and knee motion returned to a functional ROM though he continued to have moderate amount of callus in the femur that was tender to palpation.  His chronic left thigh pain and loss of motion in the left knee significantly precluded him from being able to perform his MOS specific tasks.  However, his clinical and functional statuses were stable.  The MEB physical exam noted “decreased ROM left leg deformity, left thigh mild edema, left thigh left hip inferior to right hip” and scars of the inner left calf (6 inches) inner left thigh (6 inches), lateral left thigh (2 inches), left and right knees (#4 1 inch), left hip (1 inch) and left waist (1 inch).

At the VA C&P exam performed a month prior to separation, that “he had five separate surgeries to debride the wound” with scars of the left thigh laterally approximately 12 inches by 1 inch, left thigh medially approximately 8 inches by ½ cm, left calf laterally approximately 6 inches by 1 cm, and the left calf medially approximately 9 inches.  He had a normal gait and normal station, no limp and normal reflexes of infrapatellar (below knee) and Achilles tendon reflex.  He had an area of numbness around each of the scars approximately extending 4-5 cm away from the scar[s] in all directions.  Examination of the knee revealed no swelling or deformity; flexion and extension were 0 degrees-140 degrees degrees; Lachman and the McMurray sign were negative and there was no medial or lateral collateral ligament laxity.  A note dated 27 December 2004, a month post separation, labeled ADDENDUM indicated “EXT-PT (physical therapy) with good muscle tone with superficial scars on lower left leg.”

The Board directs attention to its rating recommendation based on the above evidence.  The IPEB found the CI unfit for chronic left thigh pain secondary to abundant callus and quadriceps adhesion and rated 5099-5003 at 0%.  This appeared to be with likely application of the USAPDA pain policy as no joint was specified, no muscle coding was applied and the rating was for pain using analogous coding to 5003 (arthritis).  Of note, the gunshot wound to the left thigh was through-and-through with entrance and exit wounds marked by large scars with surrounding numbness that were not referred conditions, but by themselves would not be unfitting, but could be considered as part of another code.  Therefore, to consider a rating under §4.73-muscle injuries with the §4.56 evaluation guidelines is reasonable.  IAW VASRD §4.56 evaluation of muscle disabilities, para (a) “An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal.”  While the CI sustained an open comminuted fracture of the femur that might be rated as severe, the record did not specify which muscle or tendons were injured, although several debridement’s were initially carried out post injury.  However, as a result of the gunshot wound to the thigh and placement of an intramedullary rod, excess callus and quadriceps adhesions developed necessitating further surgery to remove the callus and free the adhesion(s), but tended callus was still noted post-operatively.  “A through-and through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged” IAW VASRD §4.56.  Bullet fragments and/or shrapnel in the soft tissues were noted on X-rays.  He was incapable of standing for extended periods thereby demonstrating fatigue-pain.

The CI met the criteria for a severe disability of the muscles IAW definitions in VASRD §4.56 evaluation of muscle disabilities paragraph (a) rather than moderate or moderately severe disability because he had multiple surgeries with a prolonged hospitalization to treat the comminuted fracture, through-and through injury, abundant callus formation and adhesions of the quadriceps to the callus formation of the femur along with the other findings of soft tissue injuries including the saphenous nerve palsy and multiple, large scars.  Therefore, a rating of 40% is appropriate, which is congruent with the VA rating.  While the VA also rated the injuries the CI sustained to his calf, the MEB did not list the injuries as medically unacceptable nor did the PEB address them for determination of fitness.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the chronic left thigh pain secondary to abundant callus and quadriceps adhesion 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.  As discussed above, PEB possible reliance on service rules for rating the chronic left thigh pain secondary to abundant callus and quadriceps adhesion condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic left thigh pain secondary to abundant callus and quadriceps adhesion condition, the Board unanimously recommends a disability rating of 40%, coded 5313 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
Chronic Left Thigh Pain Secondary to Abundant Callus and Quadriceps Adhesion condition | 5313 | 40%
Saphenous Nerve Palsy (Sensory) After Gunshot Wound to the Left Thigh | 8799-8727 | 0%
COMBINED | 40%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130919, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXXX
President
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, AR20150001298 (PD201301887)

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 40% 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 40% 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-2013-01887