DRAFT RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01155
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141209
SEPARATION DATE:  20040229

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Computer Programmer) medically separated for an ankle 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 light duty and referred for a Medical Evaluation Board (MEB).  The ankle condition, characterized as “sural nerve entrapment syndrome left intractable,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “sural nerve entrapment syndrome, left intractable” as unfitting, rated 20%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB) with a petition to include the ankle scar and loss of tongue sensation.  The FPEB determined the scar and tongue conditions to be Category II (conditions which contribute to the unfitting condition but are not [implied] separately unfitting).  The FPEB affirmed the IPEB finding and rating for the sural nerve entrapment syndrome.  The CI non-concurred and submitted a petition for relief (PFR) to the Naval Council of Personnel Records.  It was determined that his PFR did not meet the threshold for review and, accordingly, was not accepted for review.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “The VBA Board finds that increased a 30% evaluation is warranted for incomplete paralysis of the Sural Nerve Entrapment Syndrome, left Intractable (5261) which is severe in degree under VA Diagnostic Code 8251 on September 11, 2009 at Board of Veterans’ Appeals, Department of Veterans Affairs, Washington DC 20420.  VA granted the VBA’s decision on November 18, 2009.  Service Connected disability condition with 30% effective March 1, 2004 (followed day that I have discharged from the service.) On July 17, 2013 VA further increased the condition rated to 40% effective date April 25, 2011.  My combination rating is now 100%.  I am submitting this form now because I have waited for final rated by VA 40% (July 17, 2013) for my unfitting condition which rated 20% by PEB on Oct 1, 2003.  However, 30% rated by VA which effective March 1, 2004 (followed day that I have discharged from the service).”

His complete submission was 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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  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.  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 rating for the unfitting left intractable sural nerve entrapment syndrome condition is addressed below.  The Category II scar and tongue conditions were not contended by the CI.  Neither they nor any other 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.

RATING COMPARISON:

Service IPEB – Dated 20030926	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sural Nerve Entrapment Syndrome, Left Intractable	8623	20%	Sural Nerve Entrapment Syndrome, Left Intractable	8623	0%*	STR	
Other x 0 (Not in Scope)	Other x 1	STR	
Combined:  20%	Combined:  0%*	
Derived from VA Rating Decision (VARD) dated 20040726 (most proximate to date of separation [DOS]).   * VARD dated 20050301 (1 year after DOS) granted 20% for code Sural Nerve re-coded 8521 and 10% for Sunderland Grade IV-V re-coded 8312. 

ANALYSIS SUMMARY:

Sural Nerve Entrapment Syndrome.  The STR documents that following prophylactic removal of his wisdom teeth in September 2001, the CI experienced loss of sensation and taste on the right half of his tongue.  On 8 January 2002, testing revealed a severe injury of the right lingual nerve (a sensory nerve for the tongue).  The next day, the CI underwent micro-neurosurgical repair of the right lingual nerve using a sural nerve (a leg sensory nerve) graft from the left ankle.  This was unsuccessful.  However, he had left foot numbness and the inability to do physical training secondary to the ankle surgery.  Electrodiagnostic testing on 20 February 2003 showed a left isolated distal sural nerve neuropathy (injury, disease, irritation, or dysfunction of a peripheral nerve), with preserved motor function.  The neurological exam of the left lower extremity showed normal muscle bulk, tone and strength, but with difficulty activating the posterior tibialis muscle (a muscle which stabilizes the lower leg, secondary to pain).  There was decreased sensation on the lateral foot only.  At the 12 June 2003 MEB narrative summary, the CI reported he was able to perform his duties, although with considerable pain.  He demonstrated pain and abnormal sensation to percussion over the site of the ankle surgery.  The examiner opined that the CI was unlikely to be able to carry out his duties in due to intractable pain at the ankle site.  The 21 July 2003 MEB DD Form 2807 documented the abnormal sensation of the left foot.  Although the sensory loss was detailed, no motor function abnormality was documented, implying a normal exam.  The 1 March 2005 VARD noted that an electrodiagnostic test for motor function in December 2003 showed no significant nerve damage.  It also documented a VA outpatient clinical exam dated 29 September 2004, 7 months after separation.  On this exam, the CI complained of pain, sensitivity, and spasm at the site of the sural nerve harvesting on the left ankle.  There was numbness to the outside of the foot, but the reflexes and motor function were normal.  This was thought to represent a moderate disability.

The Board directed its attention to its rating recommendation based on the above evidence.  The 30 January 2004 formal PEB rated the unfitting left sural nerve entrapment syndrome at 20% (VASRD code 8623; neuritis: anterior tibial nerve [deep peroneal]) analogous to incomplete severe paralysis.  The 26 July 2004 (5 months after separation) VARD rated the left sural nerve entrapment syndrome at 0% (8623) noting failure to report for VA Compensation and Pension examinations.  Subsequently, the 1 March 2005 (12 months after separation) VA decision Review Officer decision rated the left sural nerve entrapment syndrome at 20% (8521; incomplete paralysis, external popliteal nerve [common peroneal]) citing moderate incomplete paralysis of foot movements.  The decision was based on the STRs and a VA outpatient clinical exam as discussed above.  In multiple exams, the peripheral nerve findings documented were characterized as sensory disturbances and pain.  Atrophy was absent and reflexes and motor function were normal.  The scar was noted as non-tender and was not recorded as restricting duty.  The Board considered the impairment associated with the sensory abnormalities and pain.  These limited his ability to engage in strenuous activities, but the absence of muscle atrophy suggested regular use.  Absent motor loss or abnormal reflexes, the 20% rated under 8623 or 8521 is the maximum allowed for the neuritis code, which is used for purely sensory manifestations IAW §4.123 and §4.124.  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 sural nerve entrapment syndrome.

The Board did note that in the contention by the CI, he observed that the VA Board of Appeals decision, dated 11 September 2009, raised the rating for the sural nerve entrapment to 30%, retroactive to separation.  It cited exams in 2006, 2007, 2008, and 2009.  All of these exams were well outside the 12 month window after separation assigned higher probative value for evaluation of the disability present at separation.  The rating decision was retroactive to separation based on the date of the original claim to the VA.  Subsequently, the sural nerve entrapment rating was raised to 40%, effective on 25 April 2011, based on the date a request for an increase was filed.  The Board notes for the record that neither increase was secondary to evidence showing an increased disability at the time of separation beyond that adjudicated by the PEB and also on the second VA decision.  The information proximate to separation both prior to separation and 7 months afterwards supports no more than a 20% rating.

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 sural nerve entrapment syndrome and IAW VASRD §4.124a, 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130801, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

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