RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-00762
BRANCH OF SERVICE:  Army	BOARD DATE:  20141106
SEPARATION DATE:  20040602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (95B/Military Police) medically separated for right anterior lower leg pain 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 issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right anterior lower leg pain condition, characterized as “chronic swelling and right leg pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic right leg pain with swelling” as unfitting, rated at 0% coded under 5099-5003, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI non-concurred with the IPEB findings / recommendations consequently the CI requested and was granted a Formal PEB (FPEB).  The FPEB adjudicated the chronic leg pain condition under code 5399-5319, rated at 10%, IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no further appeals and was medically separated.  

CI CONTENTION:  “I have been rated and have a service-connected disability for a basal skull fracture, anosmia, tinnitus, migraines, and for Irritable Bowel Syndrome (IBS).  These medical conditions were missed/overlooked at my Medical Board.40 (10/02/2003), Physical Evaluation Board (PEB) in Ft. Lewis, WA on 4/3/2004 and I wish for these to be considered.  I’m attaching medical records pertaining to the Basel Skull Fracture in my possession.  Medical records pertaining to the Irritable Bowel Syndrome (IBS) may be obtained through the VA Medical Center, 614, Compensation and Pension (C&P) or Medical Record/Health Information, 1030 Jefferson Ave, Memphis, TN 38108-2193 where most, if not all of my C&P exams have taken place.” [sic]

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 rating for the unfitting chronic right leg pain condition is addressed below.  The contended basilar skull fracture, migraine headaches, tinnitus and anosmia conditions were not addressed by the PEB and therefore are not within the purview of this 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 Military Records.

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 Veteran Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations and DoDI 6040.44 defines a 12 months 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.  

RATING COMPARISON:  

Service FPEB – Dated 20040414	VA - (61 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Anterior Lower Leg Pain with Swelling	5399-5310	10%	Nerve Damage to Right Leg with Swelling	8599-8521	NSC	20110621	
			Aching Joints and Muscle Pain	5099-5025	NSC	20110621	
			Arthralagias, Both Knees 	5009	NSC	20110621	
Other x 0  (Not in Scope)	Other x 9 	20110621	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20090714 (VARD closest to DOS).  All ratings were effective 19920929 from prior service.  VARD dated 20120319 awarded 10% for 8599-8520 (Reflex Sympathetic Dystrophy, Right Lower Extremity) effective 20110421.  

ANALYSIS SUMMARY:  The Board noted that the CI’s service treatment records were extremely scant and that the VA were unable to locate or reconstruct original treatment records of VA Rating Decision (VARD) dated 14 July 2009.  

Right Anterior Lower Leg Pain with Swelling (Right Leg) Condition.  The CI had continuous right lower leg pain with noted edema (swelling) following direct blunt trauma to his shin (anterior tibia) in June 1992.  Conservative therapy was not effective and there was no documentation of surgery, nor did the CI report that he had surgery to the right lower extremity.  The narrative summary (NARSUM) provided detail treatment notes that included episodes of edema (swelling) of the right calf area; circumference measurements greater than the “non-injured” left leg.  A clinical picture presented a reflex sympathetic dystrophy (RSD); also called complex regional pain syndrome.  There were reports that the CI had an impaired gait (limped) at times and complaints of pain primary over the right lower extremity anterior medial tibia (shin) area, just below the knee, that radiated down the leg.  The CI was prescribed hydrochlorothiazide     (a diuretic) for edema (swelling).  Summarized exams from November 2002 through April 2003 documented right calf edema (swelling), tenderness and anteriorly hyperpigmentation (discoloration of skin) that resemblance “venous insufficiency” without neurovascular deficit.  Knee and ankle range-of-motion (ROM) was pain free and normal.

The MEB NARSUM examiner noted the CI was “in mild acute distress … walks, sits, and stands well”.  Examination in October 2003 documented right leg edema without pitting.  There was tenderness over the tibia (shin) and neurovascular exam was noted as intact.  X-ray images of the right leg were normal (no degenerative joint disease).  Right knee magnetic resonance imaging obtained in November 2002 revealed “minimal effusion and … a small cyst were noted in the lateral patella”.  Right knee exam documented painful motion of 0 degrees to 110 degrees (un-injured left knee of 0 degrees to 120 degrees) with full, “pain free” ankle motion.  Bone scan showed no abnormalities at the right tibia (shin), but increased uptake in bilateral knees.  

The CI’s appeal to the PEB to addressed complaints of pain being severe “SIGNIFICANT” stating “while the pain may be short lived it does, however, at times cause my leg to collapse underneath me”.  He related an episode of [right] lower leg cellulitis in November 2003 and the usage of TED Hose (compression stockings) for vascular damage.  

At the VA Compensation and Pension (C&P) examination, performed 5 years post separation, the CI reported 10/10 pain over the lower half of his right leg, associated with some skin changes and swelling.  Pain was worse with standing and walking.  The CI reported that he was able to walk a mile and described daily flare-ups.  Physical examination of the right lower leg documented edema (swelling) of the lower calf that extended into the hind foot, with skin changes and tenderness.  Examiner noted active ROM of the [right] ankle, 10 degrees 
(20 degrees normal) dorsiflexion and plantar flexion 20 degrees (normal 45 degrees), both ROM were without pain.  Strength was 4/5 (decreased from 5/5) in the calf muscles and sensation to light touch was normal.  

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB rated the CI’s right lower leg condition as a muscle injury at 10% (Group X).  The VA did not initially rate the right lower leg condition, however, based on a later C&P examination in 2011, the VA did rated the right lower leg as a nerve condition [RSD] at 10%.  The remote VA C&P examination documented that the CI’s right lower leg condition had deteriorated post-separation; noted slight muscle weakness.  The Board considered ratings the right lower leg condition using VASRD §4.73 (muscle) and VASRD §4.124a (peripheral nerve) codes and criteria.  

The CI had no penetrating wound, surgery, retained fragment, evidence of infection, muscle scarring, loss or decreased muscle power proximate to separation.  Although the CI did have numerous signs of reflex sympathetic dystrophy (RSD), such as pain, edema and skin changes, there was no evidence of muscle weakness other than the post separation remote VA C&P examination.  Therefore, after reviewing the muscle’s coding and IAW VASRD §4.55 criteria (principles of combined ratings for muscle injuries) as well as VASRD §4.56 criteria (evaluation of muscle disabilities) the Board determined that there was no avenue to any rating above the PEB awarded 10% (moderate).  

The Board considered and determined that alternate coding for VASRD §4.124a criteria (peripheral nerve) did not rise to the 20% (moderate) threshold under code 8720 (sciatic nerve) or code 8721 (popliteal common peroneal) as all symptoms were below the knee and the CI had only an “occasional” limp.  Also, rating using peripheral nerve (tibial or superficial peroneal) would not support a rating higher than 10% (moderate) under more limited nerve distribution codes.  The Board concluded that the application of an alternate peripheral nerve code for the CI’s right lower leg condition would not result with the CI receiving a higher disability rating.  Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board determine that there was insufficient cause to recommend a change in the FPEB adjudication for the right lower leg condition.  The Board concluded that this condition could not be recommended for additional disability 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 right lower leg condition and IAW VASRD §4.73, 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 recharacterization 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 XXXXXXXXXXXXXXXXX, AR20150006649 (PD201400762)

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:

Encl						
						         
CF: 
(  ) DoD PDBR
(  ) DVA