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AF | PDBR | CY2013 | PD-2013-00909
Original file (PD-2013-00909.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX    CASE: PD-2013-00909
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20150121
SEPARATION DATE: 20021130


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-3 (Rifleman) medically separated for post-traumatic pain. The pain condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The post-traumatic pain, characterized as “status post (s/p) grenade injury with multiple metallic foreign bodies” and “post traumatic pain, causalgia type, service aggravated,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The Informal PEB adjudicated “post traumatic pain, causalgia type” as unfitting, rated 20%, with application of the VA Schedule for Rating Disabilities (VASRD). The PEB adjudicated the s/p grenade injury with multiple metallic foreign bodies and shrapnel to his upper and lower extremity as a Category II condition, one that contributes to the unfitting condition. The CI made no appeals and was medically separated.


CI CONTENTION: The CI writes: “The reason I believe I'm eligible for the review board is because I was forced out of service at 20% so the Marine Corps could avoid the medical retirement. Lt Commander M-K- was pushing guys out at 20% and forcing Marines to train or not documenting their injuries to make the unit look good. He was brought up on charges and forced out of the Navy for it a few years later. Commander B- was the one who was arguing with Lt Commander M-K- on my behalf. They didn't document a majority of my injuries such as the TBI or my neck and back. The scarring or burns from shrapnel weren't documented. They also gave me problems about the neuropathy. I was sent to see an outside Dr at Camp Lejeune and I cannot find record of that. Nothing about PTSD was ever mentioned either. When I challenged the med-board I was told they'd make my life miserable and hold me at Lejeune another year or more on light duty or keep my mouth shut and just take the 20% separation. I also went to Lt Commander M-K- to try and get it raised and he just said I was faking the entire thing. Himself and the company commander Major D- were on a witch hunt. I had to request mast on them and the company Gunnery Sgt because they were attempting to force me to train. I later found out if l trained they would have been able to bring me up on charges claiming I faked the injuries. W- P- was arguing for me with platoon commander Capt S- and BAS the entire time he was my Corpsman.”

His complete submission is at Exhibit A.


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20021010
 VA - (~7 Years Post-Separation)
Condition
 Code Rating Condition Code Rating Exam

Post Traumatic Pain, Causalgia Type
 7899-7801 20% Post Traumatic Pain, Causalgia Type, and Cervical Radiculopathy, Left Upper Extremity 8510 20% 20090724
Post Traumatic Pain, Causalgia Type, and Cervical Radiculopathy, Right Lower Extremity 8520 20% 20090928
S/P Grenade Injury…. Category II No VA Entry
Other x 0 (Not in Scope)
 Other x 8 20090724
Combined: 20%
 Combined: 80%
Derived from VA Rating Decision (VA RD ) dated 20 130321 . T he original VARD of 20090617 deferred rating his PEB conditions . Ratings are effective 20090116.


ANALYSIS SUMMARY: The PEB combined the upper and lower extremity pain conditions under a single disability rating, coded analogously to 7801 (scars, burns, third degree). Although this approach may comply with policy, the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW the VASRD. If the Board judges that two or more separate ratings are warranted in such cases; however, it must satisfy the requirement that each “unbundled” condition is reasonably justified as separately unfitting. The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting. The Board's initial charge in this case was therefore directed at determining if the PEB's approach of combining conditions under a single rating was justified in lieu of separate ratings. If it is judged that one or more of the combined conditions satisfies the unfitting stipulation from above, separate ratings IAW the VASRD are recommend; although, the Board may not recommend a lower combined rating than that achieved by the PEB’s approach.

Post-Traumatic Pain Condition. The CI sustained shrapnel wounds from a grenade explosion while training on 11 August 2001. Immediate medical evaluation determined there were shrapnel wounds to the left arm, both calves and buttocks, and inner and posterior aspects of both thighs. X-rays documented the presence of small metallic foreign bodies in the left forearm, left 5th finger and both thighs, but surgical removal of shrapnel was not recommended. X-rays of the left arm and right foot were negative for metallic densities.

During the months after the injury, the CI complained of pain that was treated with anti-inflammatories and narcotics. In August and October 2001, a surgeon noted only one site of significant pain, which was behind the right knee. The CI was activated in January 2002. A medical officer note addressing the issue of eligibility for re-mobilization due to shrapnel injuries, indicated that the CI had returned to his civilian job and was taking no pain medication. He was considered capable of returning to full duty. Primary care clinic notes in January and March 2002 reported there was pain shooting down both legs, and that the CI was having discomfort during physical training and prolonged standing. On 4 March 2002, the CI complained that he could not walk further than 20 feet.

A record entry from the Pain Clinic on 8 April 2002 (8 months prior to separation) indicated that pain was predominantly in the right lower extremity. The CI reported at that time that occasional loss of balance occurred but it was not certain if this was because of pain or weakness in the right lower extremity. Exam showed the ability to perform one-leg squats three times on each leg and to perform normal tandem walking. Reflexes were normal. The assessment was chronic right lower extremity pain due either to foreign body or nerve injury.

On 11 April 2002, a neurologist noted numbness, tingling and pain in the right calf thought to be due to a fragment behind the right knee; and pain in the left arm due to a left arm fragment. Examination reported no muscle weakness. The neurologist rendered a diagnosis of post-traumatic pain (causalgia type), and recommended medication for neuropathic pain. An examination on 1 June 2002 noted a normal gait. A pain clinic entry on 4 June 2002 recorded a chief complaint of right posterior leg pain. There was no mention of pain in other extremities. Examination noted decreased sensation of the right calf. Medication for neuropathic pain was changed from Elavil to Neurontin.

At the MEB exam on 11 July 2002 (5 months prior to separation), the CI reported pain, tingling and numbness in the left arm and loss of full use of his legs. At a pain clinic follow-up on 12 July 2002 (5 months prior to separation), the CI complained of right leg pain and numbness below the knee that was not improved with medication. There was no mention of pain in other extremities. Examination showed decreased sensation of the right calf and no tenderness. The dosage of Neurontin was increased to the maximum.

The narrative summary (NARSUM) evaluation on 12 July 2002 reported complaints of sharp pain shooting down both lower extremities “at times” as well as episodes of numbness in the back of the right calf. Examination showed 20-30 areas of small scar formation on both legs and several areas small apparent metal fragments were coming to the skin surface on a leg and left arm. Muscle strength of the upper and lower extremities was normal. Sensation of the posterior calf was decreased. The examiner rendered diagnoses of “status post grenade injury with multiple metallic foreign bodies and shrapnel to his upper and lower extremity” and “post traumatic pain, causalgia type.” At a clinic visit on 3 October 2002 (approximately 2 months prior to separation), the CI’s chief complaint was bilateral leg pain and weakness. There was no mention of upper extremity pain. Examination showed normal sensation and muscle strength.

At several VA Compensation and Pension exams performed approximately 7 years after separation, the CI reported working as a heavy equipment operator since leaving the military. He complained that since the injury in 2001, he experienced tingling in the left arm, right hand and right toes; and also of back pain that radiated to the right buttock and calf. He could walk long distances and did not become unsteady, but could not run. Muscle involvement was, by history, reportedly limited to the right calf and left arm (biceps). Examinations showed normal gait and muscle strength in all extremities. Multiple minute scars were noted on all four extremities and a few on the back. They appeared to be associated with imbedded foreign bodies. Scars were sensitive, but those on the legs were more painful. There was no evidence of muscle damage. X-rays of the thighs showed multiple small metallic soft tissue foreign bodies.

The Board directed attention to its rating recommendation based on the above evidence. The PEB identified post-traumatic neuropathic pain (“causalgia”) as the unfitting condition, but used an analogous burn scar code (7801) for the 20% rating. The Board noted that this coding pathway requires a measurement of the skin’s surface area (in square feet or meters) affected by scarring; and that this data was not in evidence at the time of separation. It was concluded that utilizing a burn scar coding option for rating was therefore not feasible, in addition to being a poor choice for neuropathic pain in this case. However, Board members agreed that burn scars are appropriately subsumed under a neuropathic pain rating (see below). The Board was challenged by the lack of clarity in the NARSUM and on the MEB and PEB forms regarding the anatomical locations and extent of the unfitting pain, an important issue in formulating a rating recommendation. The NARSUM and PEB identified injury of “upper and lower extremity.” Despite references in the NARSUM and some other clinic notes to pain in both legs, the assessment by the neurologist (who addressed the pain condition in April 2002) supports the conclusion that the right lower and left upper extremities were the pain locations relevant to fitness and rating. Moreover, other treatment notes by surgery and pain management specialists addressed only right lower extremity pain. Therefore, as previously elaborated regarding unbundling of the PEB’s adjudication, Board members considered if the right lower extremity, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting as established above. Members agreed that the functional limitations in evidence justified the conclusion that the right lower extremity condition was integral to the CI’s inability to perform his MOS; and accordingly, a rating for the right lower extremity is recommended. In deliberating the most appropriate coding option in this case, it was considered that neuropathic pain rendered the CI incapable of performance in his MOS; therefore a peripheral nerve coding pathway is the appropriate approach. Under the 8720 code (neuralgia of sciatic nerve) “moderate” incomplete paralysis justifies a 20% rating, while “mild” warrants 10%. Board members agreed the evidence at hand was most accurately described by the “moderate” descriptor, and therefore a 20% rating was supported. 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 lower extremity pain condition, coded 8720 IAW VASRD §4.124a.

Next, the Board turned its attention to the post-traumatic pain of the left upper extremity. As previously elaborated, the Board must first consider whether this condition remains separately unfitting, having de-coupled it from a combined PEB adjudication. In analyzing the intrinsic impairment for appropriately coding and rating the left upper extremity pain condition, the Board is left with a questionable basis for arguing that it was indeed independently unfitting. Surgical and pain management notes emphasized the right lower extremity as the source of clinically relevant pain. While the neurologist mentioned left upper extremity pain, no functional details were provided, except that muscle strength was noted to be normal. The Board concluded there was no pre-separation examination evidence that could logically be associated with significant disability. The CI reported to VA examiners years after separation that since his injuries in 2001, he experienced tingling of the left upper extremity; and yet functioned as a heavy equipment operator since the time of separation. It should also be noted that while the VA ultimately assigned a 20% rating for left upper extremity pain (effective to 2009), this rating included a cervical radiculopathy condition due to cervical degenerative disc disease, neither of which was in evidence at the time of separation. After due deliberation, the Board agreed that evidence does not support a conclusion that left upper extremity causalgia, as an isolated condition, would have rendered the CI incapable of continued service within his MOS and accordingly cannot recommend a separate rating for it.


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 post-traumatic pain, causalgia type condition, the Board unanimously recommends that it be adjudicated for two separate conditions: In the matter of the right lower extremity causalgia type pain condition, the Board unanimously recommends a disability rating of 20%, coded 8720. In the matter of the left upper extremity causalgia type pain condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional disability rating. 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
Right Lower Extremity Post Traumatic Pain, Causalgia Type 8720 20%
Left Upper Extremity Post Traumatic Pain, Causalgia Type Not Unfitting
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130620, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                                   
XXXXXXXXXXXXXX
President
Physical Disability Board of Review
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 11 May 15

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:
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN


                                                      XXXXXXXXXXXXXXX
                                            Assistant General Counsel
                  (Manpower & Reserve Affairs)

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