RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-00309
BRANCH OF SERVICE:  Army	                        SEPARATION DATE:  20050304

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Heavy Construction Equipment Operator, medically separated for “right upper extremity reduced motion and coordination secondary to right brachial plexopathy” with a disability rating of 20%. 

CI CONTENTION:  “They never did look at the long term effects of my head injury, vision, lack of full use of my right upper extremities.  Never considered I had a mental eval before this occurred.”  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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.  

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:

SERVICE PEB – Dated 20041129	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
RUE Reduced Motion & Coordination secondary to Brachial Plexopathy	8513	20%	RUE Reduced Motion & Coordination secondary to Brachial Plexopathy	8513	40%	STR 	
Cognitive Disorder – secondary to GSW	Not in the Line of Duty	Self-Inflicted GSWto the Head Assoc w/ MDD – Single Episode & Residual Cognitive Disorder	9434-9304	10%	STR 	
Self-Inflicted GSW to Head						
Traumatic Optic Neuropathy Rt Eye		Optic Neuropathy w/ Retinal Scarring	6074	30%	STR 	
Diffuse Chorioretinal Scarring of Macula Rt Eye		No VA Rating	
Rt Cranial Nerve III Palsy	Not Unfitting	Rt Cranial Nerve III & VII Palsy w/ Facial Paralysis	8207	20%	STR 	
Rt Cranial Nerve VII Facial Paralysis	Not Unfitting					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Self-Inflicted GSW.  On 9 September 2001, the CI sustained a self-inflicted GSW to the right temple.  He was discovered, by his girlfriend, sitting in the driver’s seat of his car with a gun next to him.  She called 911 and he was transferred by ambulance to a nearby hospital.  There he was stabilized prior to transfer by helicopter to a referral center for neurosurgery care.  He became combative, which required the use of a paralytic and intubation.  Upon arrival at the referral hospital, he was noted to have an obvious protrusion of the right eye and a CT scan of the brain showed a bullet path from the right to left frontal (lobes) with fragments in the parietal region, implying that the motor cortex (the part of the brain controlling motor function) had been injured as well.  On examination, an abrasion of the left elbow was present, but no injury to the RUE, shoulder or neck was recorded.  He was taken directly to surgery within a few hours of the injury and the bullet and necrotic (dead) brain tissue were removed.  The CI was in the intensive care unit after the surgery and initially unresponsive.  A physical therapy (PT) note on 14 September 2001, 4 days after the surgery, documented random movements of the left upper extremity (LUE) and left lower extremity (LLE), but clonus (abnormal movements consistent with damage to the motor cortex of the brain) of the right lower extremity (RLE) and a flaccid (lack of tone, more consistent with an injury distant to the brain) RUE.  He was unresponsive.  Over the course of the admission, the lack of active movement of the RUE persisted.  Winging of the right scapula was noted on an occupational therapy (OT) note on 26 October 2001, indicative of injury to the long thoracic nerve, which arises from the cervical nerve roots C5-7.  On 27 September 2001, the CI apparently fell although the only contemporary record documenting this in evidence is an X-ray report from early that morning.  There was no acute injury to the right wrist or elbow, but an irregularity of the shoulder joint was noted and a fracture could not be excluded.  The overall impression was a “negative exam.”  The discharge summary was dictated later that same day.  It was noted that after surgery, the CI was able to move all four extremities, but that the right side function was reduced compared to the left (the OT note on 14 September 2001 had documented no movement of the RUE).  He was transferred with multiple diagnoses including GSW to the head with right frontal to left parietal brain damage, loss of vision in the right eye with optic neuropathy, left elbow decubitus ulcer (a pressure sore), and right hemiparesis (a weakness of the right side of the body).  The fall was not recorded nor was there any entry of a right brachial plexus injury.  The CI was transferred to a VA facility for long term rehabilitation of his injuries.  The admission history and physical was dated 28 September 2001.  On examination, he was noted to have purulent drainage (pus) from the right eye, deviation of the tongue to the right (indicative of damage to the right XIIth CN).  He showed weakness of the RLE and flaccidity of the RUE.  This was attributed to the head trauma.  No trauma to the RUE, shoulder, or neck was recorded.  A neurosurgical evaluation on 4 October 2001 noted that the right eye was bulging (proptotic), swollen, red and had secondary limited movement.  Some movement was present in all directions, but superior movement was the most compromised (from the superior rectus muscle which is innervated by CN III).  The face was symmetric and the tongue midline (deviated before).  The LUE and LLE were noted to have full strength, but the RLE as weak (paretic) and the RUE densely paretic, almost paralyzed (plegic).  The CI continued rehabilitation with improvement in his cognitive function and ability to walk independently.  The RUE weakness persisted, but was improved.  On 13 November 2001, a physical medicine and rehabilitation note documented that he had cognitive deficits and a right hemiparesis secondary to the GSW to the head and that the CI was to be transferred (to a location closer to his home base) that day.  No comment was made regarding a brachial plexus injury or any sequelae from a fall and the records during the hospitalization consistently attribute the RUE weakness to the GSW to the head.  The records then fall silent until a 5 March 2002 internal medicine (IM) appointment at which the CI requested a profile for a dislocated right shoulder which happened 6 months previously during rehabilitation (ilitation).  Weakness of the right facial muscles (innervated by CN VII) was noted.  Another CT scan was accomplished on 2 May 2002.  It noted a defect in the bony orbit and numerous metallic fragments.  At a follow-up IM appointment on 19 August 2002, it was noted that, per the patient, the CI had dislocated his right shoulder struggling against restraints in September 2001.  He was seen in orthopedics on 10 September 2002 and noted to have a Type II acromium (a normal variant, but one more prone to injury), but to be without pain at the acromio-clavicular joint (where the shoulder blade and collar bone meet).  The next record is a primary care note dated 4 March 2003 in which the examiner noted an excellent cognitive recovery, but persistent blindness.  The RUE weakness was persistent, which the CI attributed to a fall in the hospital.  The examiner opined that the RUE weakness was secondary to a right brachial plexus injury secondary to the shoulder injury.  The Board noted that this is a different history than what is in the record which itself is different from what the CI reported in August to the IM examiner.  This is also the first time the RUE weakness was attributed to a right brachial plexus injury.  The CI continued in rehabilitation.  An OT note dated 14 April 2003 documented persistent RUE weakness, but full functional range of motion (ROM) of the shoulder in flexion and abduction.  He was not able to make a “composite” fist.  Electro-diagnostic studies were accomplished on 20 May 2003.  The history provided was that the CI injured his right shoulder when he fell out of a hospital bed.  The examination was thought to be consistent with a brachial plexus injury but could not be localized further.  He was evaluated for the MEB on 23 July 2003 in orthopedics.  It was noted that he had an AC separation 2 weeks into his hospital stay in September 2001 (the source of this information was not recorded).  The examiner recorded that a neurosurgeon (not in evidence) had determined that the RUE findings were more likely secondary to the fall in the hospital rather than the head trauma.  The CI continued OT on a regular basis with steady improvement in the function of his RUE.  At the 14 March 2003 MEB examination (DD Form 2897), the CI reported that the right shoulder was dislocated on 9 September 2001 secondary to the GSW.  The examiner wrote that the CI had dislocated his shoulder from a fall while hospitalized.  The 14 October 2003 and 3 November 2003 OT notes documented normal strength of the right shoulder, elbow, and wrist.  The 13 November 2003 note documented that the right shoulder forward flexion, elbow flexion, and wrist flexion were all reduced at 4/5, but that the RUE was otherwise 5/5 (normal).  Repeat testing on 26 January 2004 showed reduced grip strength on the right compared to the left (right dominant) with minimal change in either had since the prior August.  His ability to pinch on the right was absent.  The narrative summary (NARSUM) was dated 2 June 2004.  The examiner noted that, by report, the CI fell from his hospital bed and landed on his right shoulder.  He reported difficulty writing, typing, lacing up his boots, and buttoning his shirts.  He was able to lift 50 pounds.  He was able to run and thought that he could fire a weapon and ruck march.  X-rays of the right shoulder were normal.  Sensory function was not recorded.  Motor function was recorded as normal except for 0/5 finger abduction and adduction (apart and back together).  Slight atrophy of the right forearm and arm was recorded.  Duty limitations included saluting, pushups, buttoning clothes, and lifting with his right arm.  The ROM was reduced.  The MEB examination and history were repeated on 4 June 2004, presumably since it had been over a year since initially accomplished.  The CI reported that he had dislocated his right shoulder from GSW fall on 9 September 2001.  The MEB examiner documented that he had subluxed his right shoulder (a slippage, but not a complete dislocation).  He was noted to have reduced ROM and strength on examination without further detail.  Repeat electrodiagnostic testing on 17 June 2004 was interpreted as a right posterior cord brachio-plexopathy (pathology of the brachial plexus) which was moderately severe as well as bilateral abnormalities of the median nerves consistent with carpal tunnel syndrome (CTS).  The latter would account for some of the difficulties reported with use of his hands at the NARSUM examination.

An ophthalmology evaluation was accomplished for the MEB on 23 June 2004.  The CI was noted to have profound visual loss which had been present since the GSW.  Elevation of the right eye (CN III) was 50% of normal.  He was diagnosed with a traumatic optic neuropathy of the right eye, scarring of the retina, a right CN III palsy (a type of paralysis, although some function was documented here), and a right CN VII (facial nerve, motor function for the face) weakness which had improved from previous examinations.  The CN III and VII loss was thought to be disabling, but to meet retention standards.  The visual acuity loss and optic (transcribed as object) neuropathy did not meet retention standards.  The MH examination on 12 October 2004 noted that the CI was working independently doing administrative duties and that the sensory and motor deficits “are not causing significant problems in everyday life.”

The CI did not report to the initial VA Compensation and Pension (C&P) examination scheduled for 17 September 2005, 6 months after separation.  General, eye, and MH examinations were performed 24 months after separation, well outside the normal 12 month window for increased probative value.  At the General C&P examination, the CI reported both RUE and RLE weakness.  He reported that he fell out of bed onto his right side during his (initial) hospitalization and that he underwent PT for the shoulder injury while at the VA for rehabilitation.  Muscle tone was decreased for the right forearm and calf, but atrophy was not present.  The right grip strength was reduced.  Light touch was normal, but pinprick and vibratory sense decreased for both the RUE and RLE.  Reflexes were noted to be increased on the right side.  He was noted to be unable to rotate his right wrist or forearm without using his left hand to lift and turn.  An X-ray showed borderline narrowing of the acromio-humeral joint (the joint between the upper arm bone and shoulder), but was otherwise normal.  The separate eye examination showed residual lag of the right upper lid (CN VII) and weakness of the ocular muscles (CN III).  There was no diplopia (double vision), but the right eye was legally blind with only the ability to count fingers at 18 inches and essentially no distant vision with or without correction.  The Board directed its attention to its rating recommendations based on the above evidence.

Right Upper Extremity Reduced Motion and Coordination Condition.  The PEB and VA both used the 8513 code for all radicular groups, a peripheral condition, but rated the condition at 20% (mild) and 40% (moderate), respectively.  The Board considered the evidence.  The initial admission examination did not show any injury to the RUE nor did the discharge summary over 2 weeks later.  Notably, a small ulcer of the left elbow was repeatedly documented.  The only documentation of a fall during either hospitalization was from the history provided on an X-ray report.  There is no record of injury from fighting restraints.  The transfer history and physical at the VA rehabilitation hospital is silent regarding either event.  The history provided by the CI varied over time noting a fall at the time of the GSW, a fall while hospitalized, and a shoulder dislocation from fighting restraints.  This injury is initially recorded as “by report,” but then transitioned into part of the record.  Two sets of electro-diagnostic testing were accomplished.  The history for the first noted a shoulder injury when the CI fell out of a hospital bed.  It was interpreted as consistent with a right brachio-plexopathy.  The second study was a year later and noted RUE weakness and pain.  It noted a right posterior brachio-plexopathy and bilateral median nerve abnormalities consistent with carpal tunnel syndrome.  The Board next considered the diagnosis.  The Board opined that the RUE (and RLE) findings can be explained, at least in part, by the brain injury secondary to the GSW and subsequent surgery.  Although the records contain no documentation of an injury sufficient to account for the brachio-plexopathy, which was the diagnosis both the PEB and VA rated, the electro-diagnostic studies support the presence of such even though the records do not support that a significant injury, other than the GSW to the head, took place.  It is possible that a different interpretation would have been given if the clinicians had a more accurate history, but this is speculative.  Accordingly, the Board based its recommendation on the diagnosis of a right brachio-plexopathy even though this diagnosis is thought to be of questionable validity.  The Board noted that the VA rater cited findings in the record in the 2003 timeframe in determining the 40% rating.  The CI continued to show slow, but progressive improvement in function throughout his rehabilitation and the 2003 findings did not reflect his condition at separation.  At the time of the NARSUM, the CI continued to have weakness, but primarily of the hand muscles.  While he had difficulty using his right hand, it was not recorded that he could not use it.  The CI thought that he could fire a weapon.  The MH NARSUM examiner wrote that the sensory and motor deficits were not a significant impediment to daily activities.  The Board considered that the initial evaluations showed neurological deficits in both the RUE and RLE with persistence of both at the VA C&P examination 2 years after separation.  Also, it noted that the second set of electro-diagnostic studies showed bilateral carpal tunnel syndrome which would aggravate, if not explain, some of the difficulty reported with typing and buttoning his clothes.  As already noted, the contemporaneous records in evidence do not support that an injury sufficient to cause the right brachio-plexopathy actually occurred.  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 RUE condition.

Following the Board, the records were extensively reviewed by the USAF Consultant for Neurology.  He wrote: “Therefore, it is my opinion that the preponderance of evidence supports a central process (i.e. GSW to the head with resulting damage to the left parietal lobe) as the overwhelming cause of his right hand weakness and any scant peripheral nerve (be it plexus or root) injury contributing would not be expected to cause a disability rating of more than 20% at most.”

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right CN III and CN VII were not unfitting and the implied determination that the MDD condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The right CN III condition is a weakness of one of the muscles which move the eye (upward gaze).  The condition was included in the profile, but the NARSUM examiner noted that the CI had 50% of normal motility.  The CN VII condition was noted to limit facial muscle movement on the right and was also listed on the profile.  Although not clearly written, the examiner noted that both conditions met retention standards.  The commander only stated that the “physical condition” impacted duty without further specification.  The MDD was noted by the initial MEB to be resolved and not commented upon by the second MEB or the PEB; however, the MEB psychiatrist noted that he was at risk of recurrence on the initial MEB NARSUM dated 15 September 2003 which argued that he did not meet retention standards.  The second MEB NARSUM dated 12 October 2004 simply noted that the MDD was resolved.  The examiner noted that the CI had not needed to be followed in MH.  The CI was issued a permanent S3 profile by the MEB psychiatrist, but only the (LOD – no) cognitive disorder was listed for MH conditions.  Only the physical limitations were implicated in the commander’s statement.  The MDD was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend the addition of any of these conditions as an additionally unfitting conditions for disability rating.

The Board also considered the appropriateness of the changes in the MH diagnoses and a disability rating recommendation in accordance with VASRD §4.130.  The initial MEB forwarded the MH diagnosis of MDD, resolved (likely meant in remission), to the PEB for adjudication.  The MEB psychiatrist, while identifying the MDD as resolved, acknowledged, “the severity of his injury when depressed and the possibility of recurrence of depression argues that he does not meet retention standards on a psychiatric basis.”  The second MEB only listed the diagnosis of cognitive disorder, secondary to GSW.  The PEB adjudicated the CI for the diagnosis of cognitive disorder, secondary to GSW, based on the second MEB and did not comment on the MDD.  It referenced the MH evaluation for the MEB which noted that the MDD was resolved (in remission) and that the CI reported, “…he was not having any difficulties at all he is aware of.” The Board determined that this had no impact on the level of disability awarded.  The Board determined that no MH diagnoses were changed to the applicant's disadvantage in the disability evaluation process.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

BOARD FINDINGS:  In the matter of the RUE condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended CN III and CN VII conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended mental health condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130509, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX, AR20160008654  (PD201300309)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA