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AF | PDBR | CY2013 | PD-2013-00094
Original file (PD-2013-00094.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-00094
BRANCH OF SERVICE: MARINE CORPS         BOARD DATE: 20130801
SEPARATION DATE: 20051015


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (6072/Aircraft Maintenance Mechanic) medically separated for a bilateral compartmental syndrome in his lower legs. The CI first noticed pain in his right leg in October 2001, with left leg pain developing in October 2002. Despite surgical intervention (fasciotomy of the anterior and lateral compartments) to each lower leg, the bilateral compartmental syndrome could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was placed on limited duty (LIMDU) twice (12 months total time) and then referred for a Medical Evaluation Board (MEB). The bilateral compartmental syndrome condition, characterized as “other early complications of trauma” and “unspecified orthopedic aftercare” was forwarded to the Informal Physical Evaluation Board (IPEB) IAW SECNAVINST 1850.4E. No other conditions were identified by the MEB. The IPEB adjudicated “chronic or exertional compartmental syndrome in the bilateral lower legs status post (s/p) bilateral fasciotomies of the anterior and lateral compartments” as unfitting, with a combined rating of 20% (10% for each leg w/the bilateral factor) with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB; however, he withdrew his appeal and was medically separated.


CI CONTENTION: The CI writes: I feel I was not rated properly due to these reasons: my rating was only focused on my lower legs, at the time I also had and have been diagnosed with RSD [Reflex Sympathetic Dystrophy] from the nerve damage which is worth at least a 20% rating on its own; PTSD from being mistreated by my peers and superiors due to my conditions, I was unable to keep up physically therefore I became weak in their eyes and became a regular target for harassment. Upon discharge, I was immediately rated at 60% from the VA. Since my original rating, it has been increased to 70%. Recently, I was just diagnosed with a torn rotator cuff and weak socket in my right shoulder, which is service connected. It is hard to keep up with task at work from day to day. I recently had to changes jobs due to my service connected disabilities and I do not know how long I am going to be able to carry out my work load due to the physical and mental state I am in because of my service connected disabilities. I am thankful for the opportunity for my case to be given a second look. Hopefully, the right decision will be made at this time to change my medical discharge status to a medically retired. Thanks.


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 bilateral compartmental syndrome condition is addressed below. The reflex sympathetic dystrophy, posttraumatic stress syndrome, and the right shoulder conditions are not 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.



RATING COMPARISON :

Service IPEB – Dated 20050603
VA - (12 Mos. Post-Separation)
Condition
Code Rating Condition Code Rating Exam
Chronic or Exertional Compartmental Syndrome Bilateral Lower Legs s/p Bilateral Fasciotomy 5399-5312 10% Residuals, s/p Fasciotomy of left Lower Leg with Scar 8599-8522 20% 20060913
5399-5312 10% Residual scar R Lower Leg, s/p fasciotomy Compartment Syndrome 7805 0%* 20060913
No Additional MEB/PEB Entries
Other x 18 60% 20060913
Combined: 20%
Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 70510 (most proximate to date of separation [ DOS ] )
*Increased to 10% effective 20100903


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. Service disability compensation may only be offered for those conditions that cut short the member’s career. 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 PEB combined the left and right exertional compartment syndromes as a single unfitting condition designated as “chronic or exertional compartmental syndrome in the bilateral lower legs status post (s/p) bilateral fasciotomies of the anterior and lateral compartments” on the
findings of the PEB proceedings document. Also noted on that PEB document, are two separate analogous codes of 5399-5312 each rated at 10% for a combined rating of 20% after application of the bilateral factor. This clearly demonstrates the PEBs designation of the left and right legs as individually unfitting. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.73 with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Bilateral Compartmental Syndrome of the Lower Legs. The CI noted a mass on his right lateral shin in September 2001. There was no documented injury and the CI experienced increasing pain and numbness of the lateral leg and foot especially with running. Over the ensuing 24 months, he was seen many times for evaluation. Radiologic evaluation with plain film X-ray, ultra-sound and a bone scan failed to identify the etiology of his symptoms and the mass. In October 2002, the CI was given 4 months LIMDU. His symptoms persisted and in February 2003 the CI had the lateral and anterior compartment pressures tested in both lower legs. The pressures in both compartments of both legs were elevated after exercise. He underwent release of the right lateral and anterior compartments in December 2003 and his symptoms resolved. He then had the same procedure on his left leg in March 2004.

Chronic or Exertional Compartmental Syndrome Left Leg. The service treatment records (STR) document that his symptoms did not resolve in the left leg. At the post-operative follow-up (which was 18 months prior to separation), the CI presented with paresthesias with increased pain and decreased mobility in his left lower leg. Examination performed at that time revealed numbness in the superficial peroneal distribution with the left lower leg appearing "congested" and ''tense." The operating surgeon stated his symptoms will resolve and improve over time. The CI was given another 8 months of LIMDU for “left leg fasciotomy and numbness/pain left leg” in March 2004. The narrative summary (NARSUM) prepared 5 months prior to separation noted that the CI was complaining of chronic numbness and pain in his left lower leg, unchanged since surgery. His symptoms were present during everyday activities of living, including at rest and with walking. Physical examination of the left lower leg revealed numbness in the superficial peroneal distribution and 5/5 strength on plantar flexion and dorsiflexion. The incision sites are well healed in the lower legs. The diagnosis was chronic or exertional compartmental syndrome in the bilateral lower legs s/p bilateral fasciotomies of the anterior and lateral compartments. Also, dated the same day as the NARSUM, was a letter the CI sent to the MEB in which he described his left leg pain as, “… severe pain similar to the tooth ache...” At the VA Compensation and Pension exam performed 11 months after separation, the CI identified the bilateral compartment syndrome; however, he also was evaluated for “left leg nerve damage” which the Board will consider as related to the left leg compartment syndrome/surgical procedure. His symptoms included numbness and tingling, constant aching pain 7/10 in intensity that traveled from the leg to the foot, back and neck. He stated he could not stand for any period of time or run. The pain was located at the "operative site" and was elicited by physical activity, weather or touching and relieved with rest, over-the-counter meds or by itself. Flare-ups occurred daily and lasted for up to 3 hours. He reported multiple attacks in the previous year. Physical exam revealed scars on both mid legs (lateral aspect) that were 1cm x 4cm and depressed. There was no tenderness, instability or any other abnormal texture. The ankles had normal range-of-motion and strength. The gait was normal. Sensory exam revealed dull sensation in the left leg to sharp stimulus on the lateral aspect of the leg and foot. Reflexes and motor function were normal. The diagnosis was peripheral neuropathy with numbness of the left lower leg and feeling of dullness of sensation to sharp stimulus on the left lateral leg and foot.

The Board directs attention to its rating recommendation based on the above evidence. The PEB applied the analogous VASRD code of 5399-5312 for the bilateral exertional compartment syndrome and awarded a 10% rating for each leg with a combined rating of 20%, including the bilateral factor. The 5312 code is for a Group XII muscle disability involving the lower leg and the PEB rated it 10%, corresponding with a “moderate” rating under code 5312. For this left leg disability, it is vital to note that VASRD principle § 4.55 (principles of combined ratings for muscle injuries) states that, 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.” Additionally, Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The sensory component in this case had no functional implications. Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment. The VASRD code 5312 relies on designations of slight, moderate, moderately severe and severe muscle disability for arriving at the appropriate rating evaluation. This rating scheme entails a judgment call regarding the severity of muscle disability, especially between both moderate levels and the severe level distinction. A rigid assessment could require 3/5 or worse strength testing to merit the moderate rating. More liberal rating applies any objective motor impairment or atrophy as a threshold for the moderate designation. In this case, the only impairment was due to pain as there was no motor impairment present at the time of separation. The impairment due to pain was more than slight as it resulted in curtailment of the CI’s military career but did not cross into the severe category; therefore, it was either moderate or moderately severe. There is no evidence present for review that gives the Board reason to recommend an increased in the rating level to the next higher moderately severe, 20% level. 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 leg exertional compartment syndrome condition.
Chronic or Exertional Compartmental Syndrome Right Leg. The historical and aspects of this condition prior to surgical treatment were discussed above. The CI’s right leg was asymptomatic after the surgical procedure as documented in the STR. The same discussion present in the rating recommendation section above is applicable here also, except of the peripheral nerve pain which was not an issue with the CI’s right leg. It is notable that the VA initially applied VASRD code 7805, other scars, and rated the right leg at 0%. The Board’s deliberation determined that application of VASRD code 5312 would result in a rating of 0% (slight), for the CI’s right exertional compartment syndrome and would be detrimental to the CI’s combined disability rating. 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 right leg exertional compartment syndrome 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 exertional compartment syndrome right leg s/p fasciotomy condition and IAW VASRD §4.73, 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, as follows:

UNFITTING CONDITION VASRD CODE RATING
Exertional Compartment Syndrome Right Leg s/p Fasciotomy 5399-5312 10%
Exertional Compartment Syndrome Left Leg s/p Fasciotomy 5399-5312 10%
COMBINED (w/ BLF) 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130225, w/atchs
Exhib
it B. Service Treatment Record
Exhibit C. Department of Veterans
Affairs Treatment Record





XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review




MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:    PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
Ref:     (a) DoDI 6040.44
(b) CORB ltr dtd 2 May 14

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual's records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy' s Physical Evaluation Board:

-       
XXXXXXXXXXXXXXXXXXXX, former USMC
-       
XXXXXXXXXXXXXXXXXXXX, former USMC
-       
XXXXXXXXXXXXXXXXXXXX , former USMC
-       
XXXXXXXXXXXXXXXXXXXX , former USMC
-       
XXXXXXXXXXXXXXXXXXXX, former USMC







XXXXXXXXXXXXXXXXXXXX
Assistant
General Counsel (Manpower & Reserve Affairs)


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