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AF | PDBR | CY2012 | PD2012 01233
Original file (PD2012 01233.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Army
CASE NUMBER: PD1201233   SEPARATION DATE: 20030522
BOARD DATE: 20130307


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Soldier, SSG/E-6(71L/Administrative Specialist), medically separated for right hemiparesis secondary to open-lip schizencephaly, a congenital condition, diagnosed by magnetic resonance imaging (MRI). The CI experienced progressive right-sided weakness beginning around October 2000. She underwent a Military Occupational Specialty (MOS) Medical Review Board (MMRB) in Korea, but was recommended for a Medical Evaluation Board (MEB) and returned to CONUS early. The CI did not improve adequately with treatment to meet the physical requirements of her MOS. She was issued a permanent U3/L3 profile and referred for a MEB. The MEB forwarded right hemiparesis secondary to open-lip schizencephaly as medically unacceptable IAW AR 40-501, identifying the condition as existing prior to service (EPTS). The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the right hemiparesis secondary to open-lip schizencephaly as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). Additionally, the PEB identified the condition as EPTS, not permanently aggravated by service, but compensable IAW 10 USC 1207a, having more than 8 years of active service. The CI made no appeals, and was medically separated with a 20% disability rating.


CI CONTENTION: The CI states: “The U.S. Army didn't know much about my condition or what the outcome may be while continuing my military service. They found me unfit for duty. I was unaware of this condition, right hemiparesis secondary to open lip schizencephaly. The military aggravated this condition and was brought on while I was on Drill Sergeant duty. I wasn't able to stay in because of this. I served over 10 years in the military. I gave the military over 10 years of my life. I think I am eligible for medical benefits and the entitlements as a retired service member if they determined me unfit. They did not allow me to stay in. I didn't think I had a fair medical review board. All they said was sign the document and I will be able to go to VA for my condition. They didn't care to find out if this condition would hinder me while staying in. I was on medical hold for 8 months. One doctor said I was fine to stay in with a waiver and one doctor said no. I never had any symptoms of this condition prior to serving in the military. The 10 years I served in the military, I never had any problems doing my job or performing my duties as a soldier.”


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. 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 Army Board for Correction of Military Records.




RATING COMPARISON:

Service PEB – Dated 20030225
 VA (2 Mos. Pre-Separation) – All Effective Date 20030523
Condition
 Code Rating Condition Code Rating Exam
Right Hemiparesis Secondary to Open-Lip Schizencephaly
 8099-8045
5399-5301
5399-5310		 20% Right Hemiparesis Secondary
to Open-Lip Schizencephaly		 8099-8023 30% 20030319
↓No Additional MEB/PEB Entries↓
 Unilateral Tinnitus, L Ear 6260 10% 20030318
Migraine Headaches 8100 10% 20030319
0% X 4 / Not Service-Connected x 3 20030319
Combined: 20%
 Combined: 40%


ANALYSIS SUMMARY: The Board acknowledges the CI’s assertion that, “I didn't think I had a fair medical review board.” It is noted for the record that the Board does not have the jurisdiction to scrutinize or render opinions in reference to asserted improprieties in the disposition of a case. The Board’s authority, as defined in DoDI 6044.40, resides in evaluating the fairness of Disability Evaluation System (DES) fitness determinations and rating decisions for disability at the time of separation. The DES has neither the role nor the authority to compensate 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 (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA evidence proximal 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 therefore is probative only to the extent that it reasonably reflects the severity of disability at the time of separation.

Right Hemiparesis Secondary to Open-Lip Schizencephaly. The left hand dominant CI experienced weakness in her right foot in October 2000 which progressed to right-sided weakness and numbness by April 2001, causing her to veer from side to side when walking. MRI of the brain (April 2001) showed a large cleft extending from the lateral ventricle to the cerebral surface which appeared to be lined by gray matter (brain neurons), consistent with an open-lip schizencephaly along the left frontal lobe. At a follow-up neurology exam (May 2001) the examiner noted decreased strength, 5- out of 5 (normal strength is 5 out of 5) in the deltoid muscle, and decreased right lower extremity (RLE) strength, 4+ out of 5. Deep tendon reflexes (DTRs) were increased on the right side compared to the left; right plantar reflex was equivocal compared to the left which was normal. Pinprick and vibratory sensation were slightly decreased on the right side compared to the left. She could not walk on her heel or tiptoes on the right side. At the MEB exam in November 2002, 7 months prior to separation, the CI reported that she felt as if she were “dragging her right side.” The examiner noted that the CI was unable to run, march, or use a rucksack due to neck pain and right upper extremity (RUE) or RLE weakness. She had no history of seizures, bladder/bowel dysfunction, or abnormal movements of her extremities. The examiner noted decreased sensation and mild decrease of strength in the RUE/RLE. The DTRs were increased on the right side compared to the left; plantar reflexes were normal. Range-of-motion (ROM) was normal with discomfort. Heel-, toe,- and duck-walk were normal. The Romberg test (sensing body position) was also normal. A second MRI of the brain in November 2002 confirmed the previous finding of a gray matter-lined schizencephaly of the left lateral ventricle. There was no evidence of acute brain disease, intracranial mass, or abnormalities of other major brain structures. A neurology consultant (November 2002) found 4+ out of 5 muscle strength in the distal RUE and 4 out of 5 strength in right knee flexion. A detailed sensory examination was entirely normal; DTR’s were also normal. The neurologist noted developmental atrophy in the right arm and right foot which were a few sizes smaller than the left arm and foot. The CI reported that she wore a larger left glove and left shoe size than on her right hand and foot. He noted no evidence that the symptoms resulted from seizures, although the CI was at increased risk for seizures as a result of the brain condition. An orthopedic surgery consultant (November 2002) found decreased right-sided muscle strength, 5- out of 5, compared to left-sided, for all tested muscle groups: deltoid, rotator cuff, triceps, biceps, wrist flexors/extensors, knee flexors/extensors, anterior tibial, gastrocsoleus complex, and peroneals. The RUE/RLE DTRs were grade 3 over 4 compared to 2 over 4 (normal) in the left upper and lower extremities. A Hoffman’s test was positive in the RUE, and the RLE exhibited 3-4 beats of clonus (both signs of potential brain lesion). The exam noted right-sided weakness with toe- and heel-walk. A neurosurgeon reportedly did not recommend surgery. At the VA Compensation and Pension (C&P) exam in March 2003, 2 months prior to separation, the CI reported that she had reacquired sensation in her right side, except for persistent numbness and loss of sensation in her right foot. She reported occasional dizziness and swaying while walking. Heavier exertion such as prolonged running caused right sided weakness and unsteadiness which resolved when she ceased the activity. The examiner noted strength of 4.5 out of 5 and decreased size of all right-sided muscle groups compared to the left side. There was marked atrophy of the right leg; the circumference of the right calf was 37 centimeters (cm) compared to 43 cm for the left calf. There was a loss of the right foot arch. The right foot showed curling of the second to fifth toes, and flexion movement was reduced by one-half compared to the left foot. Sensation was intact, except for marked loss of two-point discrimination at the base of the right foot. The DTRs were exaggerated in the RUE/RLE compared to the left. She was unable to stand on her right foot with her left foot elevated, but gait was normal. The examiner reported “full ROM” in all joints. The examiner noted the CI’s relative strength which he attributed to her general physical fitness. He noted no problems related to the cervical spine.

The Board directs attention to its rating recommendation based on the above evidence. The Board deliberated the respective codes which the PEB and VA applied to rate the condition. The PEB’s 20% rating was based on a combination of three separate analogous codes: 8099-8045 (residuals of traumatic brain injury), 5399-5301 (muscle injury to Group I, shoulder girdle), and 5399-5310 (muscle injury to Group X, forefoot and toes). The PEB document states: “Rated for the upper and lower extremities.” If a 10% rating for “moderate weakness” from each of the two applicable muscle groups was the basis for the PEB’s rating, the relevance of the 8045 code is moot. Board members agreed that since the underlying unfitting condition in this case was unequivocally a central nervous system disorder, a rating recommendation should begin with attention to VASRD §4.124a, specifically “Organic diseases of the central nervous system.” The VA assigned a 30% rating using an analogous 8023 code (progressive muscular atrophy), a disease primarily of the spinal cord. However, since the site of pathology in this condition is the brain, the Board concluded that an analogous 8008 code (thrombosis of brain vessels) is a better clinical fit in this case. Under this pathway a rating is assigned based on residuals. VASRD §4.124a directs that partial loss of use of one or more extremities from neurologic lesions should be rated by comparison with paralysis of peripheral nerves. In selecting peripheral nerve codes, Board members debated the extent of muscle weakness. All of the military examiners and the C&P examiner documented some decrease of right-sided muscle strength. The neurologist and C&P examiner also noted significant atrophy of these muscles. Under the 8515 (median nerve) and the 8520 codes (sciatic nerve), the Board agreed that the above evidence describes a degree of paralysis that was “mild;” and therefore each of those codes justified no more than a 10% rating. However, Board members debated if the 8513 code ("All radicular group" of the upper extremity), which justifies a 20% rating for "mild" weakness, was more applicable in this case. The Board majority agreed that the neurologist's examination, which identified only distal weakness of the upper extremity, held higher probative value with respect to identifying subtle weakness versus normal variation, and therefore concluded that the 8515 code was a more appropriate selection. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board recommends a disability rating of 10% for right upper extremity weakness, coded 8008-8515; and 10% for right lower extremity weakness, coded 8008-8520.


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 hemiparesis secondary to open-lip schizencephaly condition, the Board by a vote of 2:1 recommends a disability rating of 10% coded 8008-8515 and 10% coded 8008-8520, IAW VASRD §4.124a. The single voter for dissent (who recommended 20% coded 8008-8513 and 10% coded 8008-8520) submitted the addended minority opinion. 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 her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Right Hemiparesis Secondary to Open-Lip Schizencephaly
 8008-8515 10%
8008-8520 10%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120629, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




        
         Physical Disability Board of Review



MINORITY OPINION:

I concur with the majority recommendation regarding the CI’s right lower extremity but am recommending a different code, 8008-8513, for her right upper extremity.

The majority of the board found the examination of the neurologist to be most probative and identified her problems to center around the effects to the median nerve, thereby settling on code 8515, which addresses the median nerve’s innervation of the hand, specifically the thumb, index and middle fingers.

Rather, I find the four key evaluations, the NARSUM, the Neurologist’s, the Orthopedist’s and the VA exam to be equally probative and note that all of them are valid on their respective dates and provide a valuable picture of how her disease progresses over those four months prior to her separation.

In difference, I am recommending code 8513 which addresses the innervation of all of radicular muscle groups; shoulder and elbow movements; adduction, abduction, and rotation of arm, flexion of elbow, and extension of wrist; and all of the intrinsic muscles of hand, and some or all of flexors of the wrist and fingers.

At the NARSUM, her entire arm evidenced developmental atrophy and decreased strength and sensory capability. While the neurologist (5 days later) only found strength decrease in her distal upper right extremity and found her sensory capability to be normal, 15 days later the Orthopedist noted decreased strength in her shoulder, upper arm and wrist and found the deep tendon reflexes of the shoulder and upper arm to be abnormal. She evidenced tenderness in her left trapezius over the back, shoulder and neck. These findings are further validated, four months later by the VA examiner (19 March 2003) who commends the CI, a former drill instructor, for maintaining her degree of physical fitness, still noting however, that the right side changes were profound. Lastly Romberg and Hoffmann’s testing validated that the source of her problem was neural.

Collectively, these exams show that the extent of her upper extremity issues encompass more than just her hand but are evidenced in her shoulder, upper arm, wrist and hand – and clearly propel one to the 8513 code at a mild level of disability rather than the 8515 code.

I respectfully submit the following minority recommendation for the Secretary’s consideration:

UNFITTING CONDITION
 VASRD CODE RATING
Right Hemiparesis Secondary to Open-Lip Schizencephaly, Mild incomplete paralysis of all radicular groups
 8008-8513 20%
Right Hemiparesis Secondary to Open-Lip Schizencephaly, Mild incomplete paralysis of the sciatic nerve
 8008-8520 10%
COMBINED
 30%


SFMR-RB                                                                         


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


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130007801 (PD201201233)
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 description without modification of the combined rating or 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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