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AF | PDBR | CY2013 | PD-2013-02247
Original file (PD-2013-02247.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2013-02247
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20141125
SEPARATION DATE: 20070430


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCPL/E-3 (0331/Machine Gunner) medically separated for a left lower extremity (LLE) condition. The condition 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 LLE condition characterized as “chronic pain due to trauma” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The Informal PEB adjudicated “pain and weakness of left lower extremity” as unfitting, rated 0%, with likely the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “Conditions have not improved, calcium deposit formed needed surgery.”


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 LLE 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 Naval Records.

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, operating under a different set of laws.


 RATING COMPARISON :

Service IPEB – Dated 20070309
 VA - (5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Pain and Weakness of Left Lower Extremity 5299-5271 0% Shell Fragment Wound, Left Lower Extremity, w/ Resulting Scar, Peroneal, and Sural Nerve Neuropathy 5311 20% 20070801
Other x 0 (Not in Scope)
 Other x 4 20070801
Rating: 0%
 Combined Rating: 60%
Derived from VA Rating Decision (VA RD ) dated 200 7 0822 ( most proximate to date of separation)




ANALYSIS SUMMARY:

Left Lower Extremity (LLE) Condition. The narrative summary notes the CI was injured secondary to shrapnel fragments from an improvised explosive device blast and underwent LLE debridement and fasciotomies in theater. He was medically evacuated and had multiple wound debridement and as well as a split thickness skin graft to his posterior left calf wound. Following rehabilitation the CI continued to have LLE pain and weakness. At a physical therapy evaluation on 23 May 2006 (11 months prior to separation), the CI reported decreased swelling. Ankle range-of-motion (ROM) was a dorsiflexion (DF) of 12 degrees (normal 20 degrees) and plantar flexion (PF) of 55 degrees (normal 45 degrees) and calf pain was noted with repeated use. At the MEB examination on 22 January 2007 (approximately 3 months prior to separation), the CI reported pain and weakness of the LLE. There was no physical examination documented for the MEB evaluation.

At the VA Compensation and Pension (C&P) examination on 1 August 2007 (performed 3 months after separation), the CI reported LLE weakness after standing a half hour or walking one to two miles, limited ankle ROM and decreased sensation of the top of the foot, as well as loss of sensation over the skin graft, but no pain. He reported occasional muscle spasm and tingling of the posterior calf. The VA examiner noted weakness of muscle Groups XI and XII and deficits of the sural and peroneal nerves. On examination the CI had normal posture and gait and reported using a cane for long walks. There were three scars of the LLE noted with associated soft tissue loss on the back of the calf. There was marked posterior calf atrophy without muscle tenderness. Knee ROM was full, without change after three repetitions. Left ankle ROM noted DF of 10 degrees, decreased to 5 degrees with three repetitions; PF of 25 degrees without change with three repetitions and loss of ability to evert or invert the ankle. No pain was noted with any ROM. The CI could rise on his toes, but had difficulty with heel raise on the left. There was mild decreased strength (4+/5) of DF and PF and decreased sensation over the top of the foot extending to the ankle. The CI noted he was unable to squat fully due to scar tissue of the posterior calf. Left tibia-fibula X-rays noted soft tissue calcification and distortion of the posterior of the calf and ankle X-rays were normal.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the LLE condition at 0 %, coded 5299-5271 (limited ankle motion) and the VA rated it 20%, coded 5311 (muscle G roup XI injury). The Board reviewed to see if a higher evaluation was applicable coding IAW VASRD § 4.71a (musculoskeletal conditions). The rating criteria using code 5271 are subjective with a 10% rating description for “moderate” ankle limitation and a 20% for “marked” ankle limitation. Members agreed that the evidence of a normal gait at the C&P examination provided support for the characterization of the CI’s disability due to the ankle condition as moderate and not marked limitation of motion, consistent with a 10% rating.

 The Board investigated to see if alternative coding would provide a higher evaluation than coding based on ROM. The Board first considered coding for muscle injury IAW § 4.73 . The Board agre ed that th e evidence implicated two muscle codes for the noted LLE weakness; code 5311 Group XI (propulsion, PF) for decreased PF and pain with repetitive ROM and code 5312 Group XII (DF) for decreased DF. The Board discussed if the LLE disability represented two unfitting conditions due two muscle groups with different actions acting upon the same joint. The Board consensus was that there was insufficient evidence that the LLE deficits attributable to Group XII (DF) were unfitting when considered apart from those attributable to Group XI code 5311 (PF) and that the LLE was appropriately considered for rating as one unfitting condition. Members agreed that the evidence supports a 20% rating for Group XI moderately severe muscle disability due to cardinal signs and symptoms of muscle disability of marked muscle atrophy, loss of soft tissue, and weakness on examination and lowered threshold of fatigue, fatigue-pain, and uncertainty of movement/incoordination with repetitive ROM or extended standing and walking, and loss of power due to posterior scar tissue. The Board again considered the normal gait noted at the VA C&P examination and concluded that this did not support a “severe” description for a 30% disability rating.

The Board next considered coding IAW §4.124a (neurological conditions). The evidence in record supported impairment of the peroneal nerve and tibial nerves. The common peroneal nerve deficits would include the loss of sensation over the dorsum of the foot, weakness of foot inversion, eversion and DF and the CI also had weakness of plantar flexion which would incriminate the tibial nerve. Both of these nerves are branches of the sciatic nerve and therefore the Board agreed rating as analogous to codes 8599-8520 (incomplete paralysis of the sciatic nerve) would be appropriate in this case. The code 8520 rating criteria are subjective with a 20% rating description of “moderate” and 40% for “moderately severe.” In the Board deliberations the CI’s normal gait likewise here provided support for the “moderate” rating argued against characterizing the incomplete sciatic nerve paralysis as “moderately severe.” This would equate the CI’s LLE disability to that of loss of use of the foot or a lower extremity amputation below the knee, codes 5165, 5167 IAW §4.71a and the Board agreed that the evidence did not support this level of residual LLE disability. The Board thus agreed that the CI’s LLE disability could be reasonably coded 8299-8250, rated 20%.

The Board noted that IAW §4.55 (Principles of combined ratings of muscle injuries) a muscle injury cannot be combined with a rating for a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions, which is not the case here. Thus the CI’s LLE weakness can be alternatively coded, but not additionally coded IAW §4.124a (neurological conditions). Likewise, the Board agreed separate ratings under §4.71a combined with rating under either §4.73 or §4.124a was not appropriate in this case because of avoidance of pyramiding the symptoms of pain, weakness and limited ankle ROM. Therefore, the Board noted that a 20% rating was achieved with either muscle or nerve coding options, but there was no path to a higher evaluation for the LLE condition. The Board agreed coding IAW §4.73 was medically appropriate in this case, coded 5399-5311 (analogous to Group XI muscle injury). 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 LLE 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 left lower extremity condition, the Board unanimously recommends a disability rating of 20%, coded 5399-5311 IAW VASRD §4.73. 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
Left Lower Extremity Pain and Weakness 5399-5311 20%
RATING 20%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131107, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record










                 
XXXXXXXXXXXXXX
President
Physical Disability Board of Review


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

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
         (c) PDBR ltr dtd 7 Apr 15 ICO XXXXXXXXXXXXXXX
         (d) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
         (e) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
(f) PDBR ltr dtd 21 Apr 15 ICO XXXXXXXXXXXXXXX

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

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

a. XXXXXXXXXXXXXXX, former USN : Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

b. XXXXXXXXXXXXXXX, former USMC : Entitlement to disability severance pay with a disability rating of 20 percent (increased from 0 percent) effective date of discharge.

c. XXXXXXXXXXXXXXX, former USMC : Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

d. XXXXXXXXXXXXXXX, former USMC : Entitlement to disability severance pay with a disability rating of 10 percent (increased from 0 percent) effective date of discharge.

e. XXXXXXXXXXXXXXX, former USN : Retroactive placement on the Temporary Disability Retired List with a disability rating of 50 percent for the 6 months immediately preceding discharge followed by disability separation effective date of discharge with a 10 percent disability rating.

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.



          XXXXXXXXXXXXXXX
         Assistant General Counsel
                 (Manpower & Reserve Affairs)

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