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AF | PDBR | CY2014 | PD-2014-00721
Original file (PD-2014-00721.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2014-00721
BRANCH OF SERVICE: Army  BOARD DATE: 20141210
DATE OF PLACEMENT ON TDRL: 20060809
Date of Permanent SEPARATION: 20070628


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Paratrooper) medically separated for chronic left sciatic (leg) neuropathy. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The left sciatic neuropathy condition, characterized as “hand grenade blast injury of lower extremities resulting in severe subacute incomplete left sciatic neuropathy,” was forwarded as medically unacceptable to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also forwarded “chronic left foot drop due to left sciatic neuropathy,” “recurring left peroneal tendon subluxation,” “chronic numbness of both feet and left lateral ankle,” and “chronic bilateral knee pain” as medically unacceptable. The informal PEB adjudicated “left sciatic neuropathy” (including all MEB diagnoses except for the knees) and “bilateral knee pain secondary to blast injury” as unfitting, rated 20% and 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy (for the knees) and placed the CI on the Temporary Disability Retirement List (TDRL). A year later, the PEB determined that the bilateral knee condition was no longer unfitting and maintained the left sciatic neuropathy rating at 20% . The CI made no appeals and was medically separated.


CI CONTENTION: “Was rated 30% and on TDRL, then dropped to 20% and discharged with severance.” 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 :

Final Service PEB - 20070530
 VA Exams Pre-TDRL entry and Pre-TDRL Exit
On TDRL - 20060809
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Lt Sciatic Neuropathy 8520 20% 20% Lt Sciatic Neuropathy 8520 60% 20060413
20070319
Bilateral Knee Pain 5099-5003 10% Not Unfitting Shrapnel Wounds to Rt Knee 5313 10% 20060413
20070319
Other x 0 (Not in Scope)
 Shrapnel Wounds to Rt leg and Ankle 5311-5312 10% 20060413
20% 20070319
Scars, Lt Lower Ext … Shrapnel 7801 0% 20060413
20070319
Scars, Rt Ankle … Shrapnel 7801 0% 20060413
20070319
Combined: 20%
 Combined: 80%
Derived from VA Rating Decision s (VARD s ) dated 200 60928 and 20081107 ( referencing cited exams) .


ANALYSIS SUMMARY: All of the CI’s disability conditions stemmed from multiple shrapnel wounds to both legs from a single blast injury in September 2005. Traumatic injuries often involve damage to the muscles, nerves, and joints of an extremity that may overlap to a great extent. The Board considered the special rating rules in the VA Schedule for Rating Disabilities (VASRD) bodily system for their evaluation (including §4.45 (the joints); §4.55 (Principles of combined ratings for muscle injuries); §4.56 (Evaluation of muscle disabilities); §4.73—Schedule of Ratings–Muscle Injuries; §4.124a—Schedule of Ratings–Neurological Conditions and, §4.120 (evaluations by comparison).

Left Leg (Sciatic Neuropathy) Condition. The narrative summary (NARSUM) and service treatment record (STR) indicated the CI’s initial injury included shrapnel wounds involving both legs (left greater than right) which required hospitalization and aeromedical evacuation from the combat theater. “He sustained the shrapnel fragments into and around the left hip area, into both knees, into the left thigh, and into both legs, ankles, and feet.” The CI had complaints of left leg and ankle pain, bilateral knee pain and weakness and numbness of the feet. He wore a left leg brace and was advised to use a cane. The profile indicated “Left foot drop/numbness of feet Bilateral knee pain - all due to blast injury,” and the commander’s statement referenced the profile restrictions and “severe sciatic nerve damage to the lower leg.”

Radiographs demonstrated retained scattered metallic pellets in the left hip area, left upper leg and top part of the left lower leg (“several scattered within the soft tissues of distal femur level and proximal leg”). Electrophysiological studies of the left leg (7 months prior to separation) demonstrated severe, incomplete damage to the major nerve of the left leg (sciatic neuropathy) with the impression being: “EMG and NCS studies continue to demonstrate a severe, subacute, incomplete, left sciatic neuorpathy involving both the peroneal and tibial divisions of the nerve, peroneal worse than tibial.”

On the NARSUM exam (5 months prior to TDRL-entry), the CI had a left short leg brace, antalgic gait, decreased sensation on the lower third of the calf and the lateral side/top of the foot, inability to flex the first (big) toe up or down (paralysis), slight decreased ability to flex the other toes up and down, decreased strength (4/5) of the thigh and lower leg, and “slight atrophy of the muscles in the thigh and lower leg” [thigh circumference on left of 46.5 cm compared to 52 on the right; left calf 39 cm compared to 42 on the right]. He was tender to palpation around both knees along the joint lines and over the patellae with no meniscal signs or instability. There was tenderness on the left peroneal tendon (connects calf muscles to the outside of the foot) but it did not sublux (move out of position) during the exam. He could extend the knees to 0 degrees (normal) and flex to 125 degrees (normal 140 degrees) without pain; while active range-of-motions (ROM) for the left ankle were dorsiflexion 5 degrees (normal 20 degrees) and plantar flexion 35 degrees (normal 45 degrees).

The diagnoses from the NARSUM were severe subacute incomplete left sciatic neuropathy with the peroneal branch being worse than the tibial branch; chronic left foot drop due to the left sciatic neuropathy; recurring left peroneal tendon subluxation; chronic numbness of both feet and left lateral ankle; and chronic bilateral knee pain due to retained shrapnel fragments. A follow-up letter from the MEB to the PEB clarified left ankle and foot strength indicated was 2/5 ankle eversion (uses the peroneal tendon), 4/5 inversion, and left great toe motor of 1/5 (3/5 for other toes).

At the VA Compensation and Pension (C&P) exam performed 4 months prior to TDRL placement, the CI reported that his left foot had little/slow control and movement, and almost no control and movement of the left big toe. He had weakness and anesthesia of parts of the left leg, and he had to wear a brace to keep his foot from dragging. The CI reported that shrapnel remained “in the knees” (X-rays confirmed fragments in the surrounding soft tissue, with no fragments in the bones or joint space) and that he suffered from ongoing weakness and lack of endurance due to pain in the knees, which was exacerbated by use and relieved by rest. The CI stated that, due to the shrapnel wounds of both lower extremities, he could not keep up with his normal work requirements because he was unable to “walk on uneven ground, road march, run, jump, fast rope, parachute, etc.;” and he was “unable to perform these activities due to pain, weakness, and loss of use in the left foot, etc.”

The examiner reported that the CI had to wear a plastic ankle foot orthosis and a firm boot but did not require an assistive device for ambulation and had a normal gait. Scars were well healed. Muscle Groups XI (~propulsion; calf/foot) area and XII (dorsiflexion; anterior muscles of the leg) were identified as the involved muscle groups, with decreased tone, decreased strength (Graded at 3 [no movement against resistance]), and signs of lowered endurance; there was no muscle herniation and no specific mention of loss of muscle integrity. The right and left knees were normal to inspection (with no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement or guard.mg of movement). The left hip abduction was limited to 25 degrees (normal 45 degrees) and was otherwise normal without pain or weakness. The left ankle ROM was full and painless, with “signs of weakness of plantar flexion and dorsiflexion with atrophy of left calf, mild swelling, subluxation of anterior tendons subluxation of tibialis anterior tendon with instability of ankle.” Both knees had full ROM (0 to 140 degrees) with the left knee (only) having painful motion with additional limitation by pain after repetitive use. The examiner concluded: “The muscle injury involves tendon damage to the left tibialis anterior tendon, weakness and subluxation. The muscle injury involves nerve damage.”

The examiner’s diagnoses were due to shrapnel blast injuries: permanent sciatic nerve damage left leg (peroneal and tibial nerves) with right foot and ankle complete weakness; shrapnel injuries to bilateral knees; right ankle anterior tibialis tendon subluxation and ankle instability; and, shrapnel wounds to both lower extremities.

The Board directed attention to its rating recommendation at the time of placement on TDRL based on the above evidence. The PEB rated “left sciatic neuropathy” with code 8520 (Paralysis of s ciatic nerve ) at 20% (Moderate) and t he left knee was combined with the right knee for a bundled 10% (5099-5003) rating , citing the US A PDA pain policy . The VA rated the left sciatic neuropathy together with “ left knee pain from shrapnel ” and “left ankle pain from shrapnel/tendon sublux” with code 8520 at 60% (Severe, with marked muscular atrophy). Although the VARD described injuries to muscle G roups XI and XII, it did not assign a separate rating for the muscles of the knee or ankle , citing IAW §4.55, “ 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.”

The Board first considered whether the left knee should be rated under code 8520, as done by the VA, or under a separate joint (pain) code, as done by the PEB. Since the disability fro m the left knee was due to pain due to retained shrapnel fragments which were not in the joint but in the surrounding tissu e, and the sciatic (peripheral nerve) code and rating should incorporate effects from muscle injury of the same body part , the Board concluded that it was most appropriate to include the disability from the left knee in the rating for the sciatic neuropathy. Pain in the area of the sciatic nerve is also included under the peripheral nerve rating. Similarly, the Board included any disability from the left ankle and lower extremity under code 8520, noting that by precedent, the Board does not recommend Service disability rating for scars unless their presence imposes a direct functional limitation that renders the CI unfit.

T here was not complete paralysis of the left sciatic nerve under code 8520 ( 80% level). The Board deliberated between the “Moderate” (20%), “Moderately severe” (40%) and “Severe, with marked muscular atrophy” (60%) incomplete paralysis rating levels for all functions and disabilities of the left lower extremity. There was visible and measurable muscle atrophy in the left thigh and the calf. The measured atrophy was described as both “slight” by the NARSUM examiner and “marked” by the VA. There was decreased strength in the left thigh and leg with weakness in the ankle and foot as well as left knee area pain on repetition attributed to shrapnel wounds (muscle) . There were sensory deficits as well as pain (neuritis or muscle pain) and ankle instability (tendon subluxation). In view of the marked weakness of the lower leg, involvement of the upper leg, peroneal tendon subluxation (ankle) , and inclusion of muscle injury disability (knee) IAW §4.55, as well as pain (neuritis or mu scle injury ) the Board determined that the left leg disability more nearly approximated the 60% (severe) disability picture under code 8520 .

The Board next considered its recommendation for permanent disability rating for the left leg condition at the time of removal from the TDRL. The single examination at TDRL removal was the VA C&P “TDRL consultation” performed in March 2007, 3 months prior to TDRL removal . The CI noted that there was some minor improvement in his gait, that he no longer used a cane, and that his therapy was stopped at the time of his separation. He was usin g an ankle foot orthosis brace and taking episodic pain medication. The CI’s main complaint referable to the left knee was some generalized aching starting generally in the morning and present during the day with activities. Examination of the left leg showed 0 / 5 strength in first toe extension (extensor halluces longus) , 2/5 strength in the extensors of the toes, and 3/5 strength on plantar flexion of the foot and toes. There was normal strength of the hips and knees , although the knees (especially left) got tired with activity . Examination of the knee was normal except for slight decreased flexion of 135 degrees (140 degrees normal). Circumference measurements in the lower extremities were: left calf 16 inches (prior 1 5 . 4 ; right 16.5) and left thigh 21 .25 inch es (prior 18.3; right 22.5) . Sensation in the left leg was decreased or absent at the level of the lateral aspect of the left ankle extending from mid leg to the toes on the left foot, while sensation in the toes was intact. The left ankle reflex was absent. The examiner detailed that the CI’s condition permitted work function and that he was self-employed full-time running heavy equipment and doing excavation work; although he was not able to run and walked with a mild lurch on the left side. The diagnosis was “ sciatic nerve neuropathy , left side, m oderate. ” The VA rated this exam at 60% with no future review exam scheduled.

The Board directed attention to its rating recommendation at the time of TDRL removal based on the above evidence. The PEB found the bilateral knee condition to be no longer unfitting at the time of the TDRL reevaluation, but this determination is not relevant to the Board’s deliberations of left leg rating since any disability to the left knee was included in the evaluation of the left leg sciatic neuropathy condition (as described above). The Board noted the CI’s improvement in gait without the use of a cane, normal knee strength with slight ROM limitation and pain , work history, and moderate classification of sciatic neuropathy. However, the CI had persistent significant symptoms of the lower leg (numbness, weakness) associated with abnormal gait and use of an ankle/foot brace , as well as persistent symptoms from his muscle injury ( pain, aching and fatigue (“tiredness” /decreased stamina of the knee with activity). The Board determined that the left leg condition (including the muscle disability) was best characterized as “Moderately Severe” (40%) at the time of TDRL removal .

Right Knee Condition. The PEB combined (“bundled”) the left and right knee conditions under a single disability rating, coded analogously to 5003, while the VA and the Board elected to include the disability rating for the left knee with that for the left leg (sciatic neuropathy) condition (see above).

The Board deliberated if the right knee condition (when decoupled from the left knee) remained reasonably justified as separately unfitting in order to remain eligible for rating at TDRL placement. The PEB determination of not unfitting at TDRL removal was evaluated to determine if there were a preponderance of the evidence to consider that it should have been found unfitting and ratable at permanent separation. To that end, the right knee condition is evaluated separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated for both TDRL placement and removal.

With regard to TDRL placement: The right knee was injured in the same blast as the left leg described above. There were shrapnel fragments into the right knee (area) and right leg. X-rays showed multiple metallic pellets within the soft tissues scattered at the distal femur and one at the level of the knee joint anteriorly. The underlying bones and joints were intact, and no fracture or callus was seen. At the time of TDRL placement, the CI had persistent pain in the right knee, with numbness in the instep of the right foot and inside of the right ankle. On examination he was tender to palpation along the joint line and all over the patella. He had intact sensation in all of the toes in the right foot, full ROM in all of the toes on the right, and normal strength in the right lower extremity. His knee ROM was 0 degrees to 125 degrees (normal 0 degrees to 140 degrees) without pain. The examiner concluded that the CI had “moderate” damage to the right lower extremity (vs. significant damage to the left lower extremity). The final diagnoses included, “Chronic bilateral knee pain due to retained shrapnel fragments. Medically unacceptable.” At the VA exam (4 months prior to TDRL placement), the CI complained of bilateral knee pain, weakness due to pain, lack of endurance with pain, and fatigue with use. The examiner noted normal gait, with normal ROM. There were no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement or guarding of movement; with no additional limitation after repetitive use. The examiner’s diagnosis was shrapnel injuries to the right knee.

The commander’s statement noted the CI’s severe sciatic nerve damage to his (left) lower leg, without any specific mention of the right leg. The physical profile listed the pertinent medical conditions as left foot drop/numbness and “bilateral knee pain.” The corrected MEB listed bilateral knee pain and the PEB found “bilateral knee pain” to be unfitting for duty. Based on the evidence, the Board agreed that the right knee condition was reasonably unfitting at TDRL-placement. As noted above, the PEB rated the right knee combined with the left knee at 10% under code 5099-5003 citing the USAPDA pain policy. The VA rated the right knee condition with code 5313 (muscle Group XIII) at 10% (“Moderate”). There were retained metallic fragments without any loss of deep fascia or muscle substance. Although there was no loss of strength on initial examination, there was history of weakness due to pain and fatigue after use – indicative of moderate muscle disability under §4.56. The STR did not detail evidence of a higher evaluation with evidence of moderately severe disability (such as through and through or deep penetrating wound; prolonged infection; intermuscular scarring; and loss of deep fascia or muscle substance on palpation). The Board concluded that the right knee condition disability was best rated with code 5313 as moderate disability of muscles (10%).

With regard to TDRL removal: The PEB adjudged that the right and left knees were no longer unfitting at the time of the TDRL reevaluation noting the CI’s employment, intact strength, and full ROM of the knees. The CI’s complaints concerning his knees were that there was some generalized ache in both knees in the morning and throughout the day with some activity. He noted that the knees got tired, especially the left knee. He noted no swelling in his knees. Examination of the right leg revealed some palpable shrapnel on the medial aspect of the right lower leg, and intact reflexes at the level of the knees and ankles. Muscle strength was normal (5/5) in all muscle groups in his right lower extremity. The right knee revealed no effusion and no crepitus; the ligaments were intact; and ROM was from 0 degrees to 135 degrees (normal 0 degrees to 140 degrees). The examiner summarized the CI’s diagnoses and left and right sciatic nerve neuropathy, without mentioning specific knee disabilities.

The Board notes the persistent shrapnel in the area of the right knee and the persistent symptoms of the right knee (aching and fatigue). However, the CI had improved while on TDRL: improved gait (mild lurching on the left side and no longer using a cane), and employment running heavy equipment and doing excavation work. In view of the right knee examination with presence of shrapnel, near-normal ROM, and apparent normal strength with lack of significant muscle atrophy on the right, the Board found little evidence that the left knee would significantly limit duty performance.

After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended right knee condition at TDRL removal, and so no additional disability rating is recommended.


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. As discussed above, PEB reliance on the USAPDA pain policy for rating the knee conditions was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board. In the matter of the left leg condition (incorporating the left knee pain and all lower extremity conditions), the Board unanimously recommends a disability rating of 60% at TDRL placement and a disability rating of 40% at TDRL removal, both coded 8570 IAW VASRD §4.124a. In the matter of the right knee, the Board unanimously recommends a disability rating of 10% coded 8570 IAW VASRD §4.73 at TDRL placement and no change in the PEB adjudication for the right knee (i.e., “not unfitting”) at TDRL removal. 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
Lt Sciatic Neuropathy (including Left Knee Pain) 8520 60% 40
Right Knee Pain 5313 10% Not Unfit
COMBINED
 60% 40%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140128, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review


 SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXX , AR20150007657 (PD201400721)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to constructively place the individual on the Temporary Disability Retired List (TDRL) at
60% disability rather than 30% disability for the period August 9, 2006 to June 27, 2007 and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40%.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the day following the TDRL period.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, provide 60% retired pay for the constructive temporary disability retired period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 40% effective the day following the constructive TDRL period.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.


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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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