RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX 	CASE:  PD-2013-01936	
BRANCH OF SERVICE:  MARINE CORPS	Separation Date:  20051215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Rifleman) medically separated for left ankle instability and left hand low ulnar nerve palsy.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “other joint derangement, not elsewhere classified, ankle and foot,” and “lesion of lateral popliteal nerve,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded four other conditions (lesion of lateral popliteal nerve; other postsurgical status; pain in joint, ankle and foot; and persistent motor and sensory deficits, left dominant hand) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the left ankle condition as unfitting, rated 10% and left hand condition as unfitting, but did not rate it as it was determined that the condition existed prior to service (EPTS).  The remaining conditions were determined to be Category II (contributing to the unfitting condition).  The CI made no appeals and was medically separated.  

CI CONTENTION:  He was given a higher rating for his conditions by the VA.  He also has requested unemployment benefits.  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:  

IPEB – Dated 20051003	VA* - (~2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Functional Left Ankle Instability	5299-5003	10%	Status Post(S/P) Two Surgical Attempts to Reconstruct the Lateral Stabilizing Ligaments of the Left Ankle	5271	10%	20051018	
S/P Mass Removal around the Superficial Peroneal Nerve	Cat II	Residual Scars on the Left Foot/Ankle… 	7804	10%	20051018	
Persistent Anterolateral and Chronic Ankle Pain	Cat II	See 5271 & 7804 Above	
Superficial Peroneal Nerve  Dysfunction	Cat II	See 5271 & 7804 Above	
Left Dominant Hand Low Ulnar Nerve Palsy	EPTS	S/P Left Hand Gun Shot Wound with Surgical Repairs	5309-5214	20%	20051018	
		Residual Scar to the Left Wrist	7804	10%	20051018	
Persistent Motor and Sensory Deficits Left Dominant Hand	Cat II	See 5309-5214 & 7804 Above	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 12 (Not in Scope)	
RATING:  10%	RATING:  70%	

ANALYSIS SUMMARY:  The Board considered all Category II conditions with their related Category I conditions.  

Functional Left Ankle Instability (Mass Removal, Chronic Ankle Pain, and Superficial Peroneal Nerve  Dysfunction) Condition(s).  The CI had multiple left ankle sprain injuries which caused chronic left ankle instability.  In October 2002, the CI underwent surgical reconstruction of the lateral stabilizing ligaments (Bronstrom procedure).  The CI reinjured his left ankle during redeployment to Theater and underwent a second attempt to tighten the stabilizing ligaments in January 2003.  An electromyogram (EMG) in 2004 showed decreased function of the superficial peroneal nerve sensory branches (lower leg).  The CI underwent a soft tissue mass excision on 22 September 2004.  The CI was given a second six month LIMDU for the left ankle instability which started on 21 March 2005 with restrictions of no deployments, no push-ups, runs, humps, hikes and no PFT runs.  

The MEB Narrative Summary (NARSUM) exam approximately 5 months prior to separation documented that the CI had a left superficial peroneal neuropathy at the area of the innervation of the peroneal longus muscle.  He continued with functional pain and persistent weakness in the peroneal area.  He had an inability to run and perform any impact activities.  The MEB NARSUM physical exam findings are summarized in the chart below.  

The VA Compensation and Pension (C&P) exam approximately months prior to separation documented that the CI reported left ankle weakness and a tendency of almost dragging the foot when walking; discomfort when walking up and down stairs and an intolerance to crouching, stooping or squatting activities.  He reported an inability to run and considerable discomfort when he wore high top combat boots.  He had ankle flares on a daily basis with normal activities, and attempts at repetitive activities cased significant difficulty.  A left ankle X-ray showed post-operative changes.  The VA C&P physical exam findings are summarized in the chart below.  

There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.  

Left Ankle ROM
(Degrees)	MEB ~5 Mo. Pre-Sep	VA C&P ~2 Mo. Pre-Sep	
Dorsiflexion (20 Normal)	“Neutral” 0	5	
Plantar Flexion (45)	30	45(70)	
Comment:  Surgery 
~15 Mo. Pre-Sep	Peroneal longus muscle 3/5 strength; brevis strength 4/5 identified as the superficial peroneal; mild effusion; tenderness worse with dorsiflexion; unable to duck walk-pain	Scars very sensitive to light pressure, associated paresthesias in dorsolateral aspect foot, lateral 3 toes identified as the lateral saphenous nerve; gait-“fairly normal”; mild hyperalgesia (excessive sensitivity to pain); no instability	
§4.71a Rating	20%	10%-20% (VA 10%)	
See Text	10% (§4.124a Rating - Nerve)	10% (Painful Scar)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the “Functional Left Ankle Instability” with all associated Category II left ankle and lower leg conditions as analogous to 5003 (arthritis, degenerative) and rated at 10%.  The VA coded the left ankle condition as 5271 (ankle, limited motion) rated at 10% (moderate), plus residual scars as 7804 at 10% (painful scar) based on a different exam.  

The Board discussed the differences in the exams and the possible unbundling and/or individual ratings of the left ankle and foot conditions with special attention to the potential unfitness/fitness of the non-ROM based peroneal nerve and painful scar conditions.  At the MEB exam, the peroneal nerve weakness and sensory deficits most likely contributed to the functional instability of the left ankle and would have reasonably been unfitting.  The VA exam did not find any motor weakness; however, their sensory-only neurologic findings (hyperalgesia with paresthesias) coupled with the painful scar that interfered with wear of boots may also be considered reasonably unfitting; although the Board adjudged that only the nerve condition could be rated and that it subsumed the painful scar.  The Board deliberated over the coding for the left lower extremity condition(s) considering potential ratings under 5003 (arthritis …), 5271 (ankle limited motion), 5284 (foot injuries, other), 5003 (arthritis …), musculocutaneous nerve [superficial peroneal] of incomplete paralysis 8522 or neuritis 8622 [for eversion of foot weakened], external popliteal nerve (common peroneal) incomplete paralysis 8521 or neuritis 8621 [for decreased dorsiflexion of the foot], internal saphenous nerve neuritis for sensory abnormalities, and/or 7804 (scars, superficial, painful on examination).  Both the MEB and C&P exams documented limited left ankle dorsiflexion with ROM’s of 0 and 5 degrees respectively as well as neurologic deficits in the distribution of the left superficial peroneal nerve.  The motor deficit appeared less pronounced by the time of the VA exam, while the VA hyperalgesia with tender scar area interfered with wear of military footgear and was considered essentially equivalent to neuritis at a similar (superficial peroneal) nerve level.  The Board adjudged that the CI’s ankle limited motion was between the 10% “moderate” and 20% “marked” criteria, while the additional disability of the nerve and/or scar condition significantly contributed to functional loss.  The CI’s disability picture at separation more nearly depicted that for the 20% (marked) criteria under combined coding of 8622-5271.  There was no alternative or higher rating given the requirements of §4.14 (avoidance of pyramiding).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the “Superficial Peroneal Nerve Dysfunction” condition coded 8622-5271 IAW §4.124a and §4.71a.  

Left Dominant Hand Low Ulnar Nerve Palsy (with Persistent Motor and Sensory Deficits Left Dominant Hand):  The CI was left handed per enlistment physical in 1990.  According to service treatment records and the MEB narrative summary (NARSUM), the CI had a gunshot wound (GSW) to his left hand on 13 October 1997.  The record was not clear whether the CI’s initial LUE injury was during a duty period; however, it appeared that the CI was a Reserve component member prior to and following the GSW to his left hand on 13 October 1997.  There was no line-of-duty (LOD) determination in the record, and the final determination was that the GSW was a pre-existing condition (EPTS).  
The Standard Form 93, Report of Medical History, dated 4 April 1998 was for “Follow-up to Operation” and noted nerve graft to the left hand.  The physician-signed narration indicated “History of GSW to middle finger (3rd) left hand under treatment; exam reveals slight deformity of finger.  Can do all tasks.”  Later, more detailed, history indicated “the bullet entered the palmar aspect of the left hand approximately between the fourth (ring) and fifth (pinky) metacarpals and exited on the ulnar aspect of the wrist at the base of the fifth metacarpal.”  

The CI was on active duty since 2000 in a very physically demanding field and did not have any left upper extremity complaints or limitations until 2004.  On 6 January 2004 the CI reported a three week history of left hand pain and loss of strength.  The CI’s GSW history from 1997 was noted with history of hand numbness and tingling with deterioration of strength in the hand (not up the arm) was noted.  On exam, there was decreased grip strength, atrophy of the ring finger muscles secondary to a shortened tendon (flexion contracture), fifth digit limited extension.  The little finger pad had deterioration of the muscle with decreased grip strength.  The CI underwent a left ring finger flexor digitorum superficialis (muscle) tenodesis (an incision and reattachment of a muscle) to correct the claw deformity.  Postoperatively, he underwent extensive Occupational Therapy (OT) and was given a dorsal block splint.  He then developed a proximal interphalangeal joint (PIP) contracture and underwent additional surgery to repair the contracture on 15 November 2004.  There was good surgical resolution of the contracture and the CI underwent additional therapy for persistent weakness and sensory deficits.  

The MEB orthopedic NARSUM exam on 12 August 2005, approximately 4 months prior to separation, documented that the CI was left handed and that he had persistent motor and sensory deficits in his left hand.  Exam documented nearly full ROM of the fingers, muscle atrophy between the middle , ring, and index fingers, and weakened grip strength (75 pounds versus 123 pounds on the non-dominant right), and finger pincher weakness.  The MEB documented that the CI’s left upper extremity (LUE) conditions were “DNEPTS” (did not exist prior to Service).  The PEB adjudicated that the condition(s) were unfitting, but pre-existing (not compensable) and this was the final Service determination.  

The VA C&P exam 2 months prior to separation documented that the CI reported a similar GSW history.  The examiner stated that the CI “previously was left-handed, but following an injury to his left hand, he has been predominantly right-handed.”  The CI reported marked weakness of the hand and fingers with considerable difficulty utilizing the hand and fingers.  The examiner documented that the CI served from May 1991 and was still in the military at the time of the VA exam.  The CI reported a general incoordination of use of his fingers involving activities such as turning a door knob, handing very fine items such as tools and he is unable to perform any typing activities.  Exam documented marked atrophy of intrinsic hand musculature; diminished sensation in ulnar nerve distribution to ring and pinky fingers; tender scaring; significant weakness of pinch strength with tip of thumb, index finger, weakness of grip; limited motion; slight crepitus with ulnar motion; fatigability; and, lack of endurance.  The VA considered this condition service-connected and rated as above.  

The Board first directed attention to its compensability recommendation based on the above evidence.  The VA examiner documentation that the CI was active duty from May 1991 and was still in the military at the time of the exam did not appear accurate based on source personnel documents.  The Board adjudged that the PEB’s final determination that the initial GSW and nerve graft was EPTS was warranted.  The Board next deliberated if there was sufficient evidence to overcome the presumption of permanent service aggravation IAW DoDI 1332.38, E3.P4.5.2.3., Presumption of Aggravation, and E2.1.1., Accepted Medical Principles (…medical facts that are so reasonable and logical as to create a virtual certainty that they are correct).  The CI had less than a cumulative 8 years of active duty at the time of permanent medical separation and there did not appear to be any medical waivers to the CI’s entry into extended active duty in 2000.  The Board considered if there were permanent service aggravation of the left hand condition prior to the surgeries in 2004, or if there was natural progression and the CI’s subsequent post-surgical LUE impairment was a generally recognized risk associated with treating the CI’s preexisting condition - which would not be service aggravation IAW DoDI 1332.38, para E3.P4.5.6.  

The PEB did not cite any well-established medical principles or literature (as distinguished from medical opinion alone) to overcome the presumption of permanent service aggravation.  The ring finger had slight deformity with no interference on performing tasks in 2000.  Given the CI had a nerve graft in 1997, it was virtually certain that there was a nerve deficit, but none was objectively documented at that time.  The treatment record did not mention left hand pain or difficulties between 2000 and January 2004.  The CI appeared to have an acutely painful and weak left hand in January 2004 (3-4 weeks duration).  There was no indication of a single acute trauma although other musculoskeletal injuries (including the left shoulder and ankle injury) were noted as was the CI’s highly physically demanding duty assignments which were considered prone to repetitive micro trauma.  The Board deliberated if the 3 weeks of hand pain and weakness and the change from slight finger deformity to flexion contracture indicated permanent service aggravation or normal progression of the GSW and nerve graft (before any in-service surgeries).  

The Board adjudged that although the EPTS GSW and EPTS nerve surgery could have naturally progressed to the CI’s pre-surgery level of disability, that there was not a virtual certainty that there was not permanent service aggravation.  The Board therefore adjudged that the CI’s left hand condition was presumed to be permanently service aggravated and was therefore compensable.  

The Board next focused on rating the unfit LUE.  At the time of entry in 2000 the CI had ring finger slight deformity, no interference of tasks and no documented neurologic deficit; therefore the rating would be undeterminable or 0% (no EPTS deduction).  At the time of separation, both exams in evidence were substantively similar for rating.  The VA coded the “S/P Left Hand Gun Shot Wound with Surgical Repairs” condition as 5309 (muscle group IX) with 5214 (wrist, ankylosis of) and rated at 20% analogous to favorable wrist ankylosis for “minor” (non-dominate upper extremity).  However, the wrist was not frozen / ankylosed (there was over 70 degrees of dorsiflexion and of palmar flexion), nor was there a wrist prosthesis to support the VA rating schema, and the NARSUM, MEPS physical and PEB also indicated that the CI was left-handed (“major” ratings should be used).  

The Board adjudged that the documentation of the CI’s symptoms of the nerve involvement and residuals of marked intrinsic musculature and hypothenar atrophy and grip weakness was more closely aligned with the ulnar nerve and rating analogously to 8516 (incomplete paralysis) criteria was predominate.  The Board then agreed that the symptoms exceeded the “mild” (10%) rating criteria and were closer to the disability picture of the “moderate-major” (30%) rating criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the “Left Dominant Hand Low Ulnar Nerve Palsy” and “Persistent Motor and Sensory Deficits Left Dominant Hand” conditions coded 8599-8516 IAW VASRD §4.124a.  

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.  In the matter of the functional left ankle instability with superficial peroneal nerve dysfunction and ankle pain condition(s), the Board unanimously recommends a disability rating of 20%, coded 8622-5271 IAW VASRD §4.124a and §4.71a.  In the matter of the “Left Dominant Hand Low Ulnar Nerve Palsy” and “Persistent Motor and Sensory Deficits Left Dominant Hand” conditions, the Board unanimously recommends a disability rating of 30%, coded 8599-8516 IAW VASRD §4.73 and §4.124a.  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	
Functional Left Ankle Instability with Superficial Peroneal Nerve Dysfunction and Ankle Pain	8622-5271	20%	
Left Dominant Hand Low Ulnar Nerve Palsy	8599-8516	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131025 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 2 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
      (c) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX.
	(e) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 30 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 20 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 20 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.

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

     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 40 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 30 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 40 percent disability rating (increased from 20 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     d. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 40 percent disability rating (increased from 20 percent) with placement on the Permanent Disability Retired List effective date of discharge.

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

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Temporary Disability Retired List for six months beginning the date of separation with a 50 percent disability followed by placement on the Permanent Disability 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Retired List at the conclusion of six months with a final rating of 30 percent and entitlement to disability retired pay.

     g. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 30 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     h. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retired pay with a 40 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.
     
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 complete.