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AF | PDBR | CY2012 | PD2012 01016
Original file (PD2012 01016.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201016        
BRANCH OF SERVICE: Army  BOARD DATE: 20130821
SEPARATION DATE: 20030530


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (31F/Network Switching Systems Operator) medically separated for a right lower extremity nerve condition. The CI incurred a blunt trauma injury to his right calf during a field training exercise in 2000. Extensive workup diagnosed the CI with a right peroneal nerve neuropathy. Despite intensive treatment and attempts at rehabilitation, he was unable to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The right lower leg condition characterized as “chronic right distal leg pain and paresthesias secondary to blunt trauma” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “incomplete mild paralysis of right common peroneal nerve” as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: The CI made no contentions.


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 right lower extremity nerve 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.


 RATING COMPARISON :

Service IPEB – Dated 20030211
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Incomplete Mild Paralysis of Right Common Peroneal Nerve 8521 10% Residuals, Injury, Right Peroneal Nerve 8523 0% 20030724
Residuals, Injury, Muscle Group XI, Right Leg 5311 0% 20030724
No Additional MEB/PEB Entries
 Other x 4 20030724
Combined: 10%
 Combined: 0%
Derived from VA Rating Decision (VA RD ) dated 200 30915 ( most proximate to date of separation [ DOS ] ).
VARD from Decision Review Officer Decision 20040713 increased condition codes 8523 and 5311 to 10% each, with combined disability percentage increased to 20%.


ANALYSIS SUMMARY: The Disability Evaluation System (DES) has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans Affairs. The Board’s authority as defined in DoDI 6044.40 resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.

Right Common Peroneal Nerve Condition. In August 2000, a generator slipped and pinned the back of the CI’s right leg. Pain in the leg persisted well after the event, leading to multiple clinical evaluations. X-rays of the leg were normal, although a very small density at the ankle was described as a normal variant by one radiologist and a chip fracture by another. A bone scan in 2001 showed an area of abnormal uptake in the mid and distal anterior right tibia. However, a magnetic resonance imaging (MRI) study on December 2001 was normal. Repeat bone scan in 2002 showed persistence of the abnormal uptake, and was thought to be compatible with shin splints or persistent bone remodeling after blunt trauma. Electrophysiologic studies in October 2002 showed a right peroneal nerve neuropathy below the fibular head (just below and lateral to the knee). The narrative summary (NARSUM) performed on 6 December 2002 (6 months prior to separation), noted difficulty with prolonged standing, walking and running due to lower leg pain. The condition had not changed significantly during the preceding year. Examination revealed a normal gait; heel and toe walking was accomplished without difficulty. There was an area in the right mid-calf muscle atrophy that was tender. Very mild weakness of the right ankle was observed, although inversion and eversion strength was described as normal. The MEB physical exam on the same date described a 7 by 6 centimeter (2.75 by 2.36 inches) “sunken area” of the right mid-calf. A physical therapy (PT) evaluation performed on 17 December 2002 showed right plantar flexion of 35 degrees (normal to 45 degrees) and ankle dorsiflexion of 15 degrees (normal to 20 degrees). Gait, including heel and toe walking, was normal. Muscle strength of right plantar flexion, dorsiflexion, inversion and eversion was 4+/5 (normal 5/5); this was described as a “slight deficit” in strength. At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported constant pain in the lower leg. Examination showed a normal gait. There was an obvious loss of calf muscle measuring 4 by 5 centimeters by 1.5 centimeters deep. Bulging of the muscle inferiorly was also present. Numbness and tingling into the leg occurred when the superior aspect of the muscle was palpated. Strength, sensation and reflexes were normal; and “normal range-of-motion (ROM) was found at all joints.” The CI presented to a VA neurologist on 29 September 2003 (4 months after separation) with a chief complaint of continuous pain in the right leg. Pain was described in the anterior mid-shin area and in the inferior calf area. Weight bearing exacerbated the pain, while sitting in a recliner with the leg elevated eased it. Examination revealed loss of muscle mass in the inferior third of the right calf area. The anterior right leg was somewhat fuller than the left and was tender. The inferior calf was also tender. Skin temperature and vascular findings were normal. Sensation was somewhat blunted over the dorsum of the right great toe and foot. Right ankle dorsiflexion and plantar flexion strength was 4 to 4+/5. The neurologist’s impression was that the blunt force trauma resulted in muscle damage and right peroneal neuropathy, and that sympathetically mediated pain (reflex sympathetic dystrophy or complex regional pain syndrome) could also be present. Follow-up electrophysiologic studies confirmed a mild right peroneal neuropathy that was significantly improved compared to prior studies in 2002. At a follow-up neurology visit 7 months after separation, the CI reported that he sometimes tripped on his foot and had “a little high stepping gait.” He reported using a cane “only rarely.” Exam showed 4/5 strength of plantar flexion, and he was prescribed an orthotic to assist with foot drop.

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 8521 peripheral nerve code (paralysis of common peroneal nerve, “mild”). Although the VA’s initial 0% rating used the 8523 code (paralysis of anterior tibial [deep peroneal] nerve), a decision review in July 2004 changed the code to 8521 and increased the rating to 10%, effective the day after separation. Board members agreed that “severe” incomplete paralysis under the 8521 code was not present, and therefore a 30% rating was not justified. It was concluded that the evidence most closely approximated the “moderate” descriptor, and therefore a 20% rating was supported. Due to the history of muscle injury and the presence of muscle weakness identified by several examiners, the Board also considered rating using a code for muscle disability (5311 [muscle group XI]; 5312 [muscle group XII]) rather than a peripheral nerve code. Under these codes moderate muscle impairment warrants a 10% rating and moderately severe impairment warrants a 20% rating. Board members agreed that the 20% rating was not justified using this pathway. It was noted that the VA initially assigned a 0% rating using the 5311 code in addition to the peripheral nerve code; and the July 2004 decision review increased the rating to 10%, effective the day after separation. The Board however acknowledged the considerable risk of pyramiding (assigning separate ratings for overlapping disabilities) by assigning two separate codes, which is prohibited under §4.14. Furthermore, IAW §4.55a (principles of combined ratings for muscle injuries) “a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.” Even conceding the §4.14 and §4.55a issues however, recommending multiple ratings requires that each diagnosis be recognizable as a separately unfitting condition. Board members concluded that in this case assigning only one rating for the lower extremity condition is appropriate. 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 right common peroneal nerve 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 right common peroneal nerve condition, the Board unanimously recommends a disability rating of 20%, coded 8521 IAW VASRD §4.124a. 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Incomplete Mild Paralysis of Right Common Peroneal Nerve 8521 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120628, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130019766 (PD201201016)
1. 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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final.

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.

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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