RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02314
BRANCH OF SERVICE:  Army 	BOARD DATE:  20141105
SEPARATION DATE:  20050420

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a drilling National Guard SPC/E-4 (11B/Infantryman) medically separated for a left hand condition.  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 issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The left hand condition characterized as “pain in the hand and weakness in the left upper extremity” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic pain with diminished grip strength, left (non-dominant) hand” as unfitting rated at 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Required physical therapy was not considered when decision was rendered”.  

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 rating for the unfitting left hand condition is addressed below and no additional conditions are 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.

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 Veteran Affairs, operating under a different set of laws.   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.

RATING COMPARISON:  

Service IPEB – Dated 20050903	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain w/ Diminished Grip Strength, Left (Non-Dominant) Hand	5099-5003	10%	Shrapnel Wound w/ Retained Foreign Bodies, Left Hand (Non-Dominant)	5307	10%	20040610	
Other x 0  (Not in Scope)	Other x 6 	20040610	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20040820 (most proximate to date of separation)

ANALYSIS SUMMARY:  

Left Hand Condition.  The narrative summary (NARSUM) dated 19 November 2003, notes the CI’s left hand injury was caused by shrapnel.  Majority of the shrapnel was surgically removed however, there was a remaining fragment that was unable to be extracted.  Notes in the service treatment record indicated the CI was right hand dominant.  An occupational therapy evaluation dated 4 November 2004, that the CI’s “hand still hurts when I make a fist”.  The examiner noted a flat hard scar under the fifth metacarpophalangeal (MCP) joint was painful with tight fisting of the hand in addition to mildly decreased left hand grip as well as finger pinch strength when compared to the right.  Despite therapy, the CI’s hand pain with weakness, continued, which impaired his performance of the duties and responsibility MOS, therefore he was referred for a medical evaluation board.

At the MEB examination 23 December 2004 (approximately 4 months before separation), the CI reported chronic left hand pain and weakness.  The MEB physical exam noted full range-of-motion (ROM) of the hand and wrist with tenderness along the fourth and fifth metacarpals, without swelling or crepitus.  The MEB examiner indicated a pain rating of slight/constant.

The VA Compensation and Pension (C&P) examination (performed 10 months prior to separation) was not in the available records.  However, the original VA Rating Decision dated 20 August 2004 cited this examination.  During this appointment the CI reported pain and a tingling sensation.  On physical examination there was a hard lump and swelling in the palm at the fifth MCP joint, with normal sensation and ROM of all fingers.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the left hand condition at 10%, coded 5099-5003 (analogous to degenerative arthritis) and cited the USAPSDA pain policy.  Also the VA rated the left hand condition at 10%, coded 5307 (for muscle injury, Group VII).  The Board agreed that the evidence in the record supports a 10% rating with consideration of functional loss due to hand pain IAW VASRD §4.40, coded either IAW VASRD §4.71a (musculoskeletal system) or §4.73 (muscle injuries) and there was no evidence to support rating for nerve impairment.  The Board reviewed the record to see if a higher rating of 20% was achieved with either code utilized by the PEB or VA.  The Board found no evidence in record of “occasional incapacitating exacerbations” due to arthritis for higher rating IAW §4.71a, or sufficient evidence of a “moderately severe disability of muscles” for higher rating IAW §4.73, that’s characterized as requiring prolonged hospitalization and involving infection, soft tissue sloughing, or muscle scarring and muscle tissue loss.  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 left hand 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 reliance on the USAPDA pain policy for rating the left hand 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 hand condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131105, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	
		
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150002649 (PD201302314)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

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