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AF | PDBR | CY2012 | PD2012 01571
Original file (PD2012 01571.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx         CASE: PD1201571
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130801
SEPARATION DATE: 20060630


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty GYSGT/E-7 (0369/Infantry Unit Leader/Platoon Sergeant) medically separated for abdominal pain status post (s/p) gunshot wound (GSW). The CI sustained a GSW during combat in November 2004. His injuries included a peroneal wound, and injury to the bladder and sigmoid colon. Despite treatment and multiple surgical procedures, the CI continued to have urgency of defecation, incontinence of stool, chronic abdominal wall pain, and chronic pain in the coccygeal region. The injuries sustained from the GSW could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The GSW, characterized as “status post combat related gunshot wound to abdomen ongoing pain with exercise greater than one year post injury” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. An addendum dated 22 February 2006, stipulated moderately severe urgency of defecation and incontinence of stool several time a week, pain in the abdominal area and chronic pain in the coccygeal area. No other conditions were submitted by the MEB. The PEB adjudicated “abdominal pain, status post gunshot wound” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI requested reconsideration. Upon reconsideration, the rating recommendation and rating was increased to 20%. The CI accepted the Reconsideration findings and was separated.


CI CONTENTION: “ A reevaluation by the US Department of Veteran's Affairs dated 6 June, 2012 concluded that my pre-military discharge examination dated, Feb 9, 2006, failed to meet the criteria of a pre-stabilization evaluation for my injuries. This new evaluation determined that I be awarded a 100% permanent and total disability rating, with no scheduled future examinations. I served honorably for over fifteen years in the US Marine Corps achieving the rank of Gunnery Sergeant. I was meritoriously promoted three times during my career, received several personal awards for outstanding achievement, and was committed to the Marine Corps way of life. It is clear beyond a doubt that the Marine Corps was my career. Because of the decision by the physical evaluation board regarding my disability proceedings dated 18, April, 2006; I did not qualify for the Active Duty Career Retention and Permanent Limited Duty (PLD) Policy for Combat Wounded Marines. This policy, (MARADMIN 228/06), was not signed into effect until 17 May, 2006, twenty nine days after the conclusion of my disability proceedings. Had this program been available during my physical evaluation board, I feel that I would have been an ideal candidate. I feel that a clear and unmistakeable error occurred in regards to the initial evaluations of my combat injuries and I request a reevaluation of my medical separation from the US Marine Corps be conducted. ” There is also a letter dated 24   August 2012 from the Disabled American Veterans , which was reviewed by the Board and considered in its recommendations.


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 GSW are 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 Naval Records (BCNR).


RATING COMPARISON:

Reconsideration – Dated 20060310
 VA - (5 Mos. Pre-Separation) Effective 20060701
Condition
 Code Rating Condition Code Rating Exam
Abdominal Pain, S/P GSW
 7332 10% S/P GSW of the Coccyx, Colon, Bladder, Abdomen and Pancreas with Colostomy, Residual Complications and Scars 5236-5317 50%
20060209
5298 10%
No Additional MEB/PEB Entries
 Other x 6 20060228
20060227
20060209
Combined Rating: 20%
 Combined Rating: 80%
Derived from VA Rating Decision (VA RD ) dated 200 60707 ( 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. The Board acknowledges the CI’s assertions that an error occurred in regards to the initial evaluation of his combat injuries and his assertions that he did not qualify for Active Duty Career Retention and Permanent Limited Duty Policy for Combat Wounded Marines. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCNR and/or the United States judiciary system.

Abdominal Pain, S/P Gunshot Wound. The CI sustained a GSW in combat in November 2004. The bullet entered the coccygeal region and traveled through the rectum, bladder, and peritoneum before lodging in the left lower abdomen. He underwent numerous surgical procedures including an excision of a fistula in the coccygeal area and a temporary colostomy. He continued to suffer from chronic pain and fecal incontinence which prevented him from returning to full duty. The narrative summary (NARSUM) dictated on 6 December 2005 and noted the above history. The CI continued to have chronic pain which was exacerbated with abdominal exercise. It was noted that the coccygeal wound had not healed. An addendum dated 22 February 2006, 4 months prior to separation, documented that he continued to have pain and also fecal urgency and incontinence several times a week. He was not expected to improve significantly. The Joint Disability Evaluation Tracking System (JDETS) note documented that the CI had fecal soiling, but did not have true incontinence and also noted that there was no documented use of pads. At the VA Compensation and Pension (C&P) exam performed 9 February 2006, over 4 months prior to separation, the CI reported continued pain and incontinence; the examiner did not specify if it was urinary, fecal, or both. No comment was made on the use of pads. On examination, he was noted to have a normal gait and to use no assistive devices. The wound was still healing as noted above. Some adherence with intramuscular scarring was noted, but without bony adhesions. Palpation revealed loss of deep fascia and loss of muscle substance as well as the coccyx. There were no additional records available proximate to separation. However, there were two additional C&P examinations in May 2012. These noted that he had continued incontinence 2-3 times a week and that he changed the “Depends” that he wore 3-4 times a day. However, there was no documentation to support use since separation. No open wounds were noted nor was there a comment on loss of muscle substance. Motion appeared to be normal.

The Board directed attention to its rating recommendation based on the above evidence. The PEB awarded 20% disability for codes 7332 (slight fecal leakage) and 5298 (loss of the coccyx with residual pain) at 10% each. The VA used a different coding option, 5236 and 5317, (sacroiliac injury and muscle Group XVII dysfunction, respectively), rated at 50% for a severe injury. The VA continued this rating on subsequent reviews, but added fecal incontinence on 19 September 2008 at 30%. Subsequently, the VA increased this to 60% on 26 January 2012 and also added urinary incontinence at 40%, coded 7599-7542.

The ratable findings include absence of the coccyx, fecal incontinence, tissue damage about the coccygeal area, and pain. The latter is subsumed under either the coccyx removal or muscular dysfunction. There was no evidence of urinary incontinence found in the service treatment records and the reference in the 2006 C&P was unclear. Accordingly, there is no evidence to support the presence of urinary incontinence as an additional unfitting condition at separation. The Board determined that while all of the findings stem from a single event, a gunshot, that each is discrete without overlap of symptoms allowing the use of multiple coding options without violation of VASRD §4.14 (avoidance of pyramiding). The coccyx removal with painful residuals is coded 5298 and rated at 10% for complete removal with painful residuals. The Board found this supported and did not find a route to a higher rating. The fecal incontinence is best coded at 7332 and rated at 10% for occasional leakage without evidence that he required the use of a pad. The Board considered if the record supported a 30% rating, but noted that the JDETS form clearly stated that the use of pads was not documented and that the CI accepted the findings of the MEB. In addition, the Board found no clear evidence for the use of pads to support a higher rating until the 2012 VARD. The Board then considered the rating options for the use of VASRSD code 5317 for muscle disability with consideration of VASRD 4.56. The Board noted that the VA rated the condition as severe and awarded 50% disability. The Board considered the descriptions documented in VASRD 4.56 and determined that a moderate level of disability, rated at 20%, most accurately matched the clinical findings “ Objective findings . Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. ” After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the coccyx condition, coded 5298, 20% for muscle disability, coded 5317, and 10% for fecal incontinence, coded 7332, for a combined rating of 40%.


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 GSW condition, the Board unanimously recommends a combined disability rating of 40%, coded 5317 at 20%, 5298 at 10%, and 7332 at 10%, IAW VASRD §4.71a, 4.73, and 4.114, respectively. 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
Status post gunshot wound with residuals
 5317 20%
Removal of the coccyx with painful residuals
 5298 10%
Fecal incontinence
 7332 10%
COMBINED
 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120814, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





xx
President
Physical Disability Board of Review


 MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
          COMMANDER, NAVY PERSONNEL COMMAND
                                          
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 10 Sep 13 ICO
(c) PDBR ltr dtd 9 Oct 13 ICO
(d) PDBR ltr dtd 22 Oct 13 ICO

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

         a . former USMC : Disability retirement with assignment to the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective 1 September 2002.

         b. former USN : Disability separation with a final disability rating of 20 percent (increased from 10 percent) effective 15 July 2003.

 c. former USMC : Disability retirement with assignment to the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective 30 June 2006.
         
3. Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.



          xx
         Assistant General Counsel
         (Manpower & Reserve Affairs)

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