RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXX                                    BRANCH OF SERVICE:   Marine
corps
CASE NUMBER:  PD200900584                    SEPARATION DATE:  20080115
BOARD DATE:  20110517


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was an  active  duty  Cpl  (2311,
Ammunition Technician), medically separated from the Marine Crops  in  2008.
The medical bases for the  separation  were  neuroma  of  the  left  (wrist)
dorsal radial sensory nerve (with related Category 2 diagnoses  of  surgical
repair of scaphoid fracture and left scaphoid fracture);  and  fight  (foot)
hallux sesamoiditis (with related Category 2 diagnoses  of  pes  planus  and
surgical  treatment  of  sesamoiditis).   The  CI  sustained  a  left  wrist
scaphoid fracture during  a  sporting  injury  in  February  2006.   He  was
treated with casting and occupational therapy,  but  the  fracture  did  not
heal adequately.  In April 2006, the CI underwent  percutaneous  pinning  of
the left scaphoid  fracture,  followed  by  occupational  therapy.   Despite
trials of splinting, occupational therapy and nerve injections, the  CI  did
not respond adequately to treatment and was unable  to  perform  within  his
military occupational specialty (MOS), handle a  weapon,  or  meet  physical
fitness standards.  The CI developed right foot  pain  in  June  2006.   The
pain interfered with his ability to run and  stand  for  prolonged  periods.
In August 2006, podiatry diagnosed the CI with right great toe  sesamoiditis
due to hallux valgus.  He was treated with orthotics and limited  duty,  but
his symptoms did not improve.  The  CI  underwent  surgical  excision  of  a
bipartite tibial sesamoid of the right foot in June 2007.  He  continued  to
have pain post-operatively and did not respond adequately to perform  within
his MOS or meet physical fitness standards.  He was placed on  limited  duty
and underwent a Medical Evaluation Board (MEB).   The  conditions  of  other
benign neoplasm of connective and  other  soft  tissue,  arm  and  shoulder,
closed fracture of navicular (scaphoid) bone of wrist,  other  post-surgical
status, other disorders of  bone  and  cartilage,  and  other  post-surgical
status were forwarded to the Physical Evaluation Board  (PEB)  as  medically
unacceptable IAW SECNAVINST 1850.4E.  The PEB adjudicated the  condition  of
neuroma,  left  dorsal  radial  sensory  nerve,  with  related  Category   2
diagnoses  of  surgical  repair  of  scaphoid  fracture  and  left  scaphoid
fracture, and the condition  of  right  hallux  sesamoiditis,  with  related
Category 2 diagnoses of pes planus and surgical  treatment  of  sesamoiditis
as unfitting, rated 10% each, with application of SECNAVINST  1850.4E.   The
CI made no  appeals,  and  was  medically  separated  with  a  20%  combined
disability rating.


CI CONTENTION:  “I have been unable to keep a job.   My  numbness  is  still
the main reason why I cannot keep a job.  I still drop objects and I  cannot
do a lot of things.  I am only 25 and I can’t hold  my  sons  or  do  simple
assignments because my arm gets numb.  I have had six different  jobs  since
I left active  duty  in  January  2008.   I  need  more  help  please.”   He
elaborates no specific contentions regarding rating or coding  and  mentions
no additionally contended conditions.


RATING COMPARISON:

|Service IPEB – Dated 20071129    |VA (2 Mo. After Separation) – All      |
|                                 |Effective Date 20080116                |
|Condition                        |Code                           |Rating |
|Combined:  20%                   |Combined:  20%                         |


ANALYSIS SUMMARY:  The Board acknowledges the  sentiment  expressed  in  the
CI’s application regarding the significant impact that his  service-incurred
conditions have had on his current earning  ability  and  quality  of  life.
However,  the  Disability  Evaluation  System  (DES)  is   responsible   for
maintaining a fit and vital fighting force.  While the DES considers all  of
the service member's medical conditions, compensation can  only  be  offered
for those medical conditions that cut short a service member's  career,  and
then  only  to  the  degree  of  severity  present  at  the  time  of  final
disposition.  However, the VA, operating under a different set of  laws,  is
empowered to periodically re-evaluate veterans for the purpose of  adjusting
the disability rating should the degree of impairment  vary  over  time,  as
well as considering service incurred conditions that were not unfitting  for
continued service.  In reviewing the CI’s service disability  determination,
the Board makes note that there  was  scant  evidence  to  support  the  PEB
adjudication of unfit for the right foot  condition.   Moreover,  the  Board
noted the PEB rating assigned for the right foot condition was  based  on  a
paucity of objective findings of functional impairment.  The  PEB  worksheet
comments noted that it was unclear why the foot condition “prompted all  the
duty limitations.”  Nonetheless, IAW DoDI 6040.44 the Board cannot  override
a PEB adjudication of unfitness.  Additionally,  the  same  DOD  instruction
directs that the  Board  may  not  reduce  a  disability  rating  previously
assigned such covered individual by  the  PEB.   Therefore  the  right  foot
unfit determination was considered administratively final and  the  PEB  10%
disability rating as the minimum for that condition.

Left Wrist/Hand Condition.   The  occupational  therapy  notes  in  the  STR
sometimes note that the CI is  right  hand  dominant  and  at  other  times,
ambidexterous.  The VA exam  indicated  right  hand  dominant.   There  were
three left wrist exams and range of motion  (ROM)  evaluations  in  evidence
which the Board weighed in arriving at its rating recommendation.  Both  the
wrist joint (§4.71a) and associated nerve findings (§4.124a) are listed  for
each exam as summarized in the chart below.

|L Wrist - ROM  |Hand Surgeon    |MEB            |VA C&P             |
|               |~ 4 Mo. Pre-Sep |~ 2 Mo. Pre-Sep|~ 2 Mo. After-Sep  |
|Dorsiflexion   |70⁰             |“Full ROM”     |“Full ROM”         |
|(0-70)         |                |               |                   |
|Palmar Flexion |65⁰             |“Full ROM”     |“Full ROM”         |
|(0-80)         |                |               |                   |
|Comments       |Numbness on     |Numbness on    |Positive Phalen’s, |
|               |dorsum of hand, |dorsum of      |positive Tinel’s,  |
|               |+Tinels at scar,|fingers, no    |pain at 80⁰        |
|               |Dx- superficial |painful motion,|flexion, good      |
|               |radial nerve    |negative EMGs; |strength in        |
|               |neuroma         |Neg carpal     |fingers/thumb, Dx –|
|               |                |tunnel test; + |carpal tunnel      |
|               |                |Tinel’s at     |                   |
|               |                |scar, Dx-      |                   |
|               |                |radial nerve   |                   |
|               |                |neuroma        |                   |
|§4.71a Rating  |0%              |0%             |10% (§4.59, painful|
|               |                |               |motion)            |
|§4.124a Rating |20%             |20%            |10%                |


The PEB and VA chose different coding options for the  condition.   The  PEB
chose 8799-8712, analogous to neuralgia of the  lower  radicular  group  and
rated at 10%; while the VA chose 5215, for wrist limitation of motion  rated
at 10%, as well as 8515, for mild, incomplete paralysis of the median  nerve
(carpal tunnel),  rated  at  10%  (combined  20%).   The  service  treatment
records (STR) and the MEB narrative summary (NARSUM)  documented  complaints
of numbness, without pain, along the dorsum of the left hand  thumb,  middle
and index fingers, consistent with the radial nerve  distribution.   The  VA
compensation and pension (C&P) exam did not  specify  which  aspect  of  the
fingers was affected.  The hand specialist documented  the  absence  of  any
palmar  numbness.   Both  the  hand  specialist  and  the  NARSUM   examiner
documented a positive Tinel’s sign at the scar, with the MEB  examiner  also
noting that the CI’s symptoms were reproduced with wrist flexion  and  ulnar
deviation,  all  consistent   with   radial   nerve   symptomotology.    The
commander’s statement indicated pain with lifting causing  the  CI  to  drop
items.  Conversely, the VA examiner noted a positive Phalen’s test, as  well
as a positive Tinel’s on  palpation  of  the  palmar  wrist,  suggestive  of
median  nerve  compression.   Nerve  conduction  studies  conducted  by  the
service found no evidence of compression of the median nerve, radial  nerve,
or ulnar nerve in the left upper extremity.  X-rays performed  by  the  hand
surgeon documented a well-healed scaphoid bone, with a well-placed  accutrak
screw, normal scapho-lunate alignment and no signs of wrist arthrosis.   The
MEB and VA exams both documented  full  range  of  motion,  while  the  hand
surgeon noted palmar flexion limited  to  65  degrees.   The  VA  documented
painful flexion at 80 degrees.  There was no evidence of  ankylosis  or  any
compensable limited motion without application of  §4.59  (painful  motion).
The STRs were consistent in  documenting  symptoms  in  the  radial  sensory
nerve distribution and some exams documented mixed radial and ulnar  sensory
deficits despite nerve conduction studies with no evidence of  median  nerve
compression.  Exams indicated the CI’s neurologic symptoms  were  positional
and with lifting and included dropping items.

The Board considered the CI was right-hand  dominant  for  rating  purposes.
The CI’s wrist/hand disability did not meet the criteria for §4.63 (loss  of
use  of  hand).   The  Board  considered  that  the  CI’s   disability   was
predominately neurologic and that the in-service wrist ROM exams  would  not
have interfered with duty performance and were not to  a  compensable  level
absent the  unfitting  nerve  involvement.   The  Board  considered  various
alternate ratings IAW §4.124a and adjudged that the PEB coding (8712:  lower
radicular group, neuralgia) was closer to  the  CI’s  mixed  neurologic  and
disability picture and would be predominant to the VA’s (8515; paralysis  of
the median nerve [carpal tunnel]) coding.  The Board  makes  note,  however,
that there is no VA Schedule for  Rating  Disabilities  (VASRD)  10%  rating
level under the PEB’s analogous 8712 coding.   Given  the  CI’s  history  of
dropping items over 10 pounds, the  Board  deliberated  rating  between  the
moderate (30%) and mild (20%) levels.  After due  deliberation,  considering
all of the evidence  and  mindful  of  VASRD  §4.3  (reasonable  doubt)  and
§4.124a, the Board recommends a separation rating of 20% for the left  wrist
condition, coded as 8799-8712.

Right Foot Condition.  The PEB and the VA  chose  different  coding  options
for the right foot condition which did bear on the rating.   The  PEB  chose
5299-5284, analogous to other foot injuries, and rated at 10% for  moderate.
 The VA chose 5280, hallux valgus, unilateral, rated at 0%.   The  STRs  and
the VA C&P exam documented painful use  of  the  right  foot  with  running,
walking, push off and prolonged  standing.   Both  exams  documented  hallux
valgus and painful manipulation/movement of the  great  toe.   The  podiatry
NARSUM noted flexible pes planus, but this was not found  on  the  VA  exam.
The VA exam additionally noted  a  normal  gait  and  documented  tenderness
along the scar on the dorsum of the right foot and on the plantar aspect  of
the first metatarsal phalangeal joint of the right foot.  The  rest  of  the
foot was non-tender.  The CI told the VA examiner  that  the  foot  symptoms
did not limit his walking and  had  not  caused  him  to  miss  work.   Pre-
operative radiographs while in service diagnosed bi-partite tibial  sesamoid
bilaterally, with evidence of early degenerative  joint  disease.   Although
the STRs and C&P exams all documented painful motion, the VA  rating  of  0%
did not reflect application of §4.59 (painful motion).   The  VA  coding  of
5280 does not allow for a  compensable  rating  in  the  absence  of  severe
symptoms or removal of the metatarsal head.  The PEB coding for foot  injury
allows a moderate  rating  that  more  accurately  reflects  the  degree  of
painful motion, painful use  and  painful  scar  comprising  the  CI’s  foot
condition.  The PEB coding  therefore  appears  predominate.   All  evidence
considered, there is not reasonable doubt in the  CI’s  favor  therefore  to
justify a Board recommendation for other than the  10%  rating  assigned  by
the PEB for the right foot condition.

Other  PEB  Conditions.   Follow-up  radiographs  in  the  STRs   documented
complete healing of the left scaphoid fracture  following  surgical  repair.
The surgical hardware was well-placed and was not documented as causing  any
limitations  on  the  CI’s  performance.   The  CI’s  upper  extremity  duty
limitations all related to his unfitting neuroma  condition.   Any  symptoms
attributable to the healed fracture and the surgery were already  considered
in the rating for the unfitting wrist condition.  There is no evidence  that
either  of  these  conditions  is  separately   unfitting.    All   evidence
considered, there is not reasonable  doubt  in  the  CI’s  favor  supporting
recharacterization of the PEB fitness adjudication  for  the  left  scaphoid
fracture condition or the surgical repair  of  the  left  scaphoid  fracture
condition.

The  MEB  exam  documented  asymptomatic  pes  cavus,  the  podiatry  NARSUM
documented flexible pes planus and the VA C&P exam  documented  the  absence
of pes planus.  The CI did not endorse symptoms of pes planus  and  did  not
have any duty limitations as a result of pes  planus.   The  CI  experienced
persistent right  foot  pain  with  activity  after  surgical  treatment  of
sesamoiditis.  The CI’s duty  limitations  post-operatively  were  unchanged
from  the  limitations  that  resulted  from   the   original   sesamoiditis
condition.  It is noted that the CI did develop a tender, hypertrophic  scar
post-operatively, but there  is  no  evidence  that  the  scar  resulted  in
separate duty limitations.  Symptoms attributable to the surgical  treatment
were considered in the rating for the unfitting right foot  condition.   All
evidence considered, there  is  not  reasonable  doubt  in  the  CI’s  favor
supporting recharacterization of the PEB fitness adjudication  for  the  pes
planus condition and the surgical treatment of sesamoiditis condition.

Remaining Conditions.  Other conditions identified in the DES file  and  the
VARD were migraine headaches, left index finger ganglion cyst removal,  left
wrist  scar,  right  foot  scar  and   pseudofolliculitis   barbae.    Other
additional non-acute conditions were also documented in the DES file.   None
of these conditions were clinically  or  occupationally  significant  during
the MEB period, were the basis for limited duty, or were implicated  in  the
commander’s  statement.   These  conditions  were  reviewed  by  the  action
officer and  considered  by  the  Board  with  any  overlap  with  the  CI’s
unfitting conditions considered in the above  ratings.   It  was  determined
that none could be argued as unfitting and  subject  to  separation  rating.
Additionally several other non-acute conditions were noted in the VA  rating
decision proximal to separation, but were not documented in  the  DES  file.
The Board does not have the authority under DoDI 6040.44 to  render  fitness
or rating recommendations for any conditions  not  considered  by  the  DES.
The Board therefore has no reasonable basis for recommending any  additional
unfitting conditions for separation rating.


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, the PEB reliance on  non-
VASRD criteria for rating the left  wrist  condition  was  operant  in  this
case, resulting in assignment of a rating which was  inappropriate  for  the
VASRD  code  utilized.    The   left   wrist   condition   was   adjudicated
independently of that policy by the  Board.   In  the  matter  of  the  left
wrist/hand condition, the Board  unanimously  recommends  a  rating  of  20%
coded 8799-8712, IAW VASRD  §4.124a.   In  the  matter  of  the  right  foot
condition and IAW VASRD §4.71a, the Board unanimously recommends  no  change
in the PEB adjudication.  In the matter of the surgical repair of  scaphoid,
scaphoid  fracture,  pes  planus  and  surgical  treatment  of  sesamoiditis
conditions, the Board unanimously recommends no  recharacterization  of  the
PEB adjudications as not separately ratable.  In the matter of the  migraine
headaches, left index finger ganglion cyst removal, left wrist  scar,  right
foot scar and pseudofolliculitis barbae  conditions  or  any  other  medical
conditions eligible for Board consideration, the  Board  unanimously  agrees
that it cannot recommend any findings of  unfit  for  additional  rating  at
separation.


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  |
|Neuroma, Left Dorsal Radial Sensory Nerve         |8799-8712   |20%     |
|Right Hallux Sesamoiditis                         |5299-5284   |10%     |
|COMBINED    |30%     |


____________________________________________________________________________
_

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090901, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.





                                        Deputy Director
                                                                    Physical
Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
            ICO XXXXX, FORMER USMC, XXX XX XXXX

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 31 May 11

1.  I have reviewed the subject case pursuant to reference (a) and approve
the recommendation of the Physical Disability Board of Review (reference
(b)).

2.  The subject member’s official records are to be corrected to reflect
the following disposition:

      a. Separation from the naval service due to physical disability rated
at 30 percent (increased from 20 percent) with transfer to the Permanent
Disability Retired List effective 15 January 2008.

3.  Please ensure all necessary actions are taken to implement this
decision, including the recoupment of previously paid disability separation
pay if warranted, and notification to the subject member once those actions
are completed.




                                        Assistant General Counsel
                                          (Manpower & Reserve Affairs)