RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00168
BRANCH OF SERVICE:  MARINE CORPS		SEPARATION DATE:  20050630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Rifleman, medically separated for “soft tissue injury, face and neck” with a disability rating of 10%.

CI CONTENTION:  “The condition rated by the Board at NCPB Washington DC might have not been rated accurately.”  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.

RATING COMPARISON:

SERVICE PEB - 20050425	VARD - 20050718	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Soft Tissue Injury, Face and Neck	7800	10%	Status Post Shrapnel Injury To Left Side Of Face With Residual Numbness	8205	50%	20050601-20050609	
			Status Post Shrapnel Injury To Left Side Of Neck With
Residual Disfiguring Scar	7800	30%		
			Staus Post Shrapnel Injury To Left Side Of Face With
Residual Disfiguring Scar	7800	30%		
			Status Post Shrapnel Injury To Neck With Residual Cervical Strain	5320	20%		
			Status Post Shrapnel Injury To Left Side Of Neck With
Residual Tender Scars	7804	10%		
			Status Post Shrapnel Injury With Residual Left Ear Neuralgia	5325-8405	10%		
			Left Lower Face Scar, Post Shrapnel Injury	7800	0%		
			Left Upper Lip Scar, Post Shrapnel Injury	7800	0%		
			Status Post Shrapnel Injury To With Residual Scars On
Upper Extremity, Anterior Chest And Left Side Of Neck	7802	0%		
Jaw Fracture	Category II	Left TMJ Disorder Secondary To Trauma	9905	0%		
COMBINED RATING:  10%	COMBINED RATING FOR ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:

Soft Tissue Injury, Face and Neck.  The CI was injured by an improvised explosive device (IED) in April 2004.  He suffered injuries to his face and left neck and jaw fracture.  His wounds healed with significant scarring, and he had limited range of motion (ROM) when turning his head to the right side.  Due to the limited ROM, a Medical Evaluation Board (MEB) was initiated.  At the MEB physical examination dated 23 February 2005, he reported numbness in several areas of his face, neck and jaw.  During physical examination he was unable to fully open his mouth or fully rotate his head to the right.  There was tenderness to palpation (TTP) of the left jaw and atrophy of the left tongue.

On 9 June 2005, 3 weeks before separation, the CI had a VA Compensation and Pension (C&P) examination.  He reported neck pain.  Physical examination revealed a scar from the left side of the neck to the suprasternal notch.  It measured 21 centimeters (cm) in length.  There was also another scar (17cm long) from the left lower face to the right submandibular area.  Both scars were very disfiguring, with areas that were slightly elevated.  They were slightly hyper-pigmented (more than 6 square inches), and slightly tender.  There was slightly abnormal texture, as the overlying skin was slightly irregular.  Neck ROM testing revealed 40 degrees of right rotation (with pain at 40 degrees), and 50 degrees of left rotation (with pain at 50 degrees).  The C&P examiner wrote: “With regard to his left-sided neck scar…he has limitations with repetitive turning of his head, as well as climbing and crawling.”

The Board carefully reviewed all information available, and directed attention to its rating recommendation based on the evidence.  The PEB combined the two large skin scars into a single unfitting condition coded 7800 and rated at 10%.  The VA assigned multiple codes and ratings to his face, neck and ear conditions.  The Board evaluated whether or not it was appropriate for the two scars to be “bundled” together.  The Board must determine if the PEB’s approach of combining the conditions under a single rating was reasonably justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD).  If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each unbundled condition was separately unfitting.  After due deliberation, the Board determined that the evidence does not support a conclusion that each of the skin scars, separately, would have rendered the CI unable to perform his required military duties.  Accordingly, the Board does not recommend a separate disability rating for each scar.  It is reasonably justified for the two scars to be “bundled” together, and treated as a single unfitting condition.

The Board determined that both scars were 5 or more inches (13 or more cm) in length, and slightly elevated.  Both were hyper-pigmented, and the area exceeded 6 square inches.  Both scars had slightly abnormal texture, as the overlying skin was slightly irregular.  The size of the area of abnormal texture (irregularity) was not recorded by the examiner.  The Board determined that these three characteristics of disfigurement were present.  IAW VASRD §4.118 (Schedule of ratings – skin), diagnostic code (DC) 7800, a disability rating of 30% is warranted when three characteristics of disfigurement are present.  Therefore, the Board determined that a 30% rating was appropriate in this case.  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 unfitting skin condition (Soft tissue injury, face and neck). 

Jaw Fracture.  The PEB adjudicated this condition as Category II (related to the unfitting soft tissue injury of face and neck).  The Board’s main charge with respect to this condition is to assess the appropriateness of the PEB’s adjudication.  This condition was thoroughly reviewed by the Board.  The CI underwent surgery to repair the jaw fracture, and the surgery was successful. The record did not show sufficient evidence that the jaw fracture had any significant effect on the performance of military duties.  Therefore, the Board concluded that there was no unfitting jaw condition present at the time of separation.  The Board determined that the jaw fracture was indeed related to the unfitting soft tissue injury, and did not constitute a separately unfitting condition for disability rating purposes.  After due deliberation, and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB adjudication of the jaw fracture.  No additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the unfitting skin condition (soft tissue injury, face and neck), the Board unanimously recommends a disability rating of 30%, coded 7800, IAW VASRD §4.118.  In the matter of the jaw fracture, the Board unanimously recommends no change in the PEB determination as Category II.  There were no other conditions within the Board’s scope of review for consideration.

The Board, therefore, 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:

CONDITION	VASRD CODE	RATING	
Soft Tissue Injury, Face and Neck 	7800	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131227, 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 28 Mar 16 ICO XXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 30 Mar 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 28 Mar 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 28 Mar 16 ICO XXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 31 Mar 16 ICO XXXXXXXXXXXXXXX

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

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

     a. XXXXXXXXXXXXXXX, former USN: Assignment to the Temporary Disability Retired List for six months effective date of discharge with a 50 percent disability rating followed by transfer to the Permanent Disability Retired List with a final disability rating of 30 percent.

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

     c. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

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

     e. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) 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.