RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00542
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060818

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Petroleum supply Specialist) medically separated for a right lower leg nerve condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.   She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).   The “right tibial nerve palsy – gastrocnemius/soleus weakness,” “right leg scar/numbness,” “resolved equinus contracture right ankle” and “healed right fibular fracture” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) combined the MEB conditions #1 and #2 and adjudicated “right tibial nerve palsy” as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions (MEB conditions #3 and #4) were determined to be not unfitting.  The US Army Physical Disability Agency issued a corrected IPEB which changed the VASRD code, but upheld the IPEB condition and rating.   The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI contends all of her injures that resulted from her motor vehicle accident (MVA) in Iraq.  Her 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 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:  

PDA Corr IPEB - Dated 20060710	VA* -  based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	

Right Tibial Nerve Palsy
  	8524	20%	Nerve Damage/Nerve Study	8599-8520	Not Service Connected	STR	
Resolved Equinus Contracture Right Ankle	Not Unfitting	Right Ankle condition	5271	NSC		
Healed Right Fibular Fracture	Not Unfitting	Right Tibial Fibular	5262	NSC		
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 13	
RATING:  20%	RATING:  No Rating	
*Derived from VA Rating Decision (VARD) dated 20090507 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY: 

Right Tibial Nerve PaIsy Condition.  The CI was involved as a passenger in a motor vehicle accident in May 2003 while deployed and sustained a fractured proximal right fibula (leg bone) and a burn wound to the right calf.  Due to persistent weakness of right plantar flexion, neurologic evaluation undertaken in September 2004 revealed evidence of tibial nerve damage.  The calf wound required scar revision by a plastic surgeon.  The narrative summary (NARSUM) on 13 April 2006 (4 months prior to separation) noted a complaint of mild right leg weakness during the push-off phase of gait.  She also experienced cramping pain of the anterolateral leg muscles for 2 hours, 2-3 times per week; and numbness over the posterior leg scar.  Physical examination showed atrophy of the right leg and slight weakness of plantar flexion.  She was unable to perform a heel rise on her right foot.  Gait showed good foot progression without limping.  The 4 centimeter (less than 2 inches) revised scar on the middle part of the posterior leg displayed absent sensation.  The examiner’s diagnoses were right tibial nerve palsy manifested by gastrocnemius and soleus (calf) muscle weakness and right leg scar with numbness.  At the MEB exam on 20 April 2006, the CI reported decreased sensation at the site of the burn on the right calf and intermittent (not daily) right leg swelling and spasms for which she occasionally took Motrin.  The MEB physical exam noted questionable right calf atrophy.  Mild calf weakness was present.  The CI could not perform a heel rise on the right but could toe walk.  Decreased sensation associated with a right calf scar was present.  Electrodiagnostic studies on 15 May 2006 (3 months prior to separation) showed normal tibial nerve findings related to muscle strength.  

A VA examiner on 25 May 2007 (9 months after separation) observed no leg swelling and a normal gait.  At a neurologic evaluation on 29 June 2007 the CI reported that she could not run or exercise due to right lower extremity pain.  Examination showed normal muscle strength and a normal gait.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 8524 peripheral nerve code for moderate incomplete paralysis of the tibial nerve.  Board members deliberated if the next higher 30% rating, characterized by “severe” paralysis, was supported by the evidence, but agreed the clinical picture was most accurately described by the “moderate” stipulation.  Therefore, a rating higher than 20% was not supported under this code.  The Board also concluded that the right calf scar was appropriately subsumed under the peripheral nerve code.  However, even conceding that the scar warranted a separate rating deliberation, there was no evidence to support a conclusion that it was separately unfitting.  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 right tibial nerve palsy condition.  

Contended PEB Conditions.  

Resolved Equinus Contracture Right Ankle Condition. Subsequent to the nerve injury described above, the CI developed pain in the Achilles tendon related to formation of a cord contracture.  On 30 August 2005 surgical lengthening of the right heel cord was performed.  Orthopedic evaluation on 24 March 2006 (5 months prior to separation) noted persistent, waxing and waning right ankle pain.  Exam showed 3 Achilles area surgical scars; one scar was prominent with an associated tender nodule.  Gait was normal.  Ankle dorsiflexion was 5 degrees (normal 20 degrees) and plantar flexion 20 degrees (normal 45 degrees).  The examiner rendered a diagnosis of right ankle pain with post-traumatic scarring.  The commander’s statement noted that pain from the fibular fracture and tibial nerve issue prevented performance of duty.

The NARSUM examiner reported that heel cord pain was present “about 75 to 100 percent of the time” and limited her ability to walk long distances.  Exam showed healed Achilles surgical scars, and tenderness of an Achilles surgical scar but no heel cord tenderness.  Dorsiflexion was 5 degrees and plantar flexion 35 degrees.  Gait was normal.   The examiner’s diagnosis was resolved equinus contracture of the right ankle.  At the MEB exam the CI complained of “pain and pulling” at the site of the Achilles tendon surgery.  She took no medication for ankle pain.  Exam showed a tender bulge at the proximal Achilles tendon.  The CI could walk on heels and toes, but discomfort was present during heel walking.  The permanent profile on 16 June 2006 (2 months prior to separation) noted a resolved equinus contracture of the right ankle.  The profile allowed for swimming and lower body weight training.  It did not prohibit wear of boots.

The Board’s main charge is to assess the fairness of the PEB’s determination that the resolved equinus contracture of the right ankle was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  This condition was not profiled or implicated in the commander’s statement.  It was reviewed and considered by the Board.  There was no performance based evidence from the record that the condition 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 a change in the PEB fitness determination for the resolved equinus contracture right ankle condition and so no additional disability rating is recommended.

Healed Right Fibular Fracture.  As previously noted, the Board’s main charge is to assess the fairness of the PEB’s determination that the healed right fibular fracture was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The proximal right fibula fracture showed complete radiographic healing.  Leg pain and weakness were determined to be due to other factors, as previously elaborated.  There were no chronic symptoms or disabilities attributable to the healed fracture site.  This condition was reviewed and considered by the Board.  There was no performance based evidence from the record that it 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 a change in the PEB fitness determination this contended condition 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.  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 right tibial nerve palsy condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended resolved equinus contracture right ankle and healed right fibular fracture conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 20140120, 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 XXXXXXXXXXXXXXXXXXXXXX, AR20160003094 (PD201400542)

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