RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02167
BRANCH OF SERVICE:  Marine Corps 	
DATE PLACED ON TDRL:  20010312	DATE REMOVED FROM TDRL:  20040801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E7, Light Armored Vehicle Technician, medically separated from the Temporary Disability Retired List (TDRL) for “scaphoid proximal pole fracture with a nonunion and marked radioscaphoid degenerative disease” and “medial meniscus tear left knee,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The applicant contends improprieties in his DES process and that he should have received a disability retirement instead of severance pay.  He included a two-page attachment to the DD-294 application; his submission, with attachments, 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 – 20010321/20040416	VARD - 20050824	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Scaphoid Fracture (Nonunion), Right Wrist	5215	20%	10%	Arthritis, Right Wrist	5215	No exam	NSC	
Meniscal Tear, Left Knee	5299-5003	10%	10%	No VA Placement	
Degenerative Disease Left Foot	Cat III	DJD of Bilateral Knees, Lumbar Spine, and Left Foot	5003	No exam	10%	
COMBINED RATING:  30% → 20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:    

Right Wrist.  Civilian treatment records documented an injury resulting in a right (dominant) scaphoid fracture in January 1983 (2+ years prior to service entry).  This was complicated by non-union which was surgically addressed (open reduction and graft), and the CI enlisted with a medical waiver.  There were sparse entries in the service treatment records (STR) indicating any significant clinical acuity throughout service.  Some earlier entries documented grossly normal range of motion (ROM) and there was no evidence to the contrary.  There were no STR details explaining the clinical progression leading to Medical Evaluation Board (MEB) referral.  The MEB narrative summary (NARSUM) was conducted on 20 October 2000 (9 months prior to Temporary Disability Retired List [TDRL] placement) and documented ROM limitation prohibiting push-ups and pain with “using the computer mouse.”  The NARSUM physical examination recorded “snuff box” scaphoid tenderness and “slightly limited” ROM.  A contemporary X-ray report stated “proximal pole scaphoid fracture with nonunion and marked degenerative change in the radioscaphoid joint (articulation between radius and scaphoid contributes significantly to wrist mobility).”  

The CI failed to report for a scheduled VA examination.  There was no VA evidence temporally probative to either the time of TDRL placement or at permanent separation.  There were no outpatient clinical entries in the STR for the period of TDRL.

A mid-TDRL examination of 11 December 2003, documented that the CI was employed full-time in a managerial position, but did not address the wrist condition.  A final TDRL examination was conducted 19 February 2004 (6 months prior to permanent separation).  The examiner documented that the CI “is still complaining of right wrist pain...denies any change in wrist function...currently asymptomatic except for the occasional pain...remains active, but he has pain with certain motions and activities.”  The physical examination recorded “some” tenderness and normal strength.  Measured ROM was dorsiflexion to 50 degrees (normal 70) and palmar flexion to 45 degrees (normal 80).  The examiner opined that surgery was indicated, but stated that the CI did not currently desire it.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rating going into TDRL was under code 5212 (radius, impairment of), conferring 20% (major) for “nonunion in upper half.”  The PEB rating at permanent separation was under code 5215 (wrist limitation of motion), conferring the maximum 10% allowed by the code.  The VA denied service connection stating that it was a pre-existing condition with insufficient evidence for service aggravation.   Barring ankylosis, the maximum rating which may be achieved under any of the VASRD §4.71a wrist codes is 10%.  The PEB initial 20% rating, necessary to justify TDRL, relied on treating the wrist injury as a distal radius (forearm long bone) fracture rather than a wrist fracture.  Members agreed that no higher TDRL rating was achievable and deliberated whether the same code and rating could be extended for application to the permanent rating recommendation.  Although there is fairly scant rating and functional evidence available for the time of TDRL placement, the evidence from the final TDRL examination is sufficient; and, it did not support the presence of significantly limited function or §4.71a criteria for a rating higher than 10% at the time of permanent separation.  The Board must surmise therefore that either the higher TDRL rating by the PEB was leveraged to authorize TDRL and extend the CI’s chances for sufficient recovery to return to active duty; or, that it fairly reflected the functional limitations at the time of TDRL placement, and the condition improved over the period of TDRL.  Whatever the circumstances, members agreed that the evidence at final separation (no significant occupational impact, reasonably preserved ROM) did not adequately justify the tenuous application of the 5212 long bone code to achieve a higher rating than the maximum 10% allowed by the more applicable 5215 joint code.  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 of the right wrist condition for the period of TDRL and at permanent separation.

Left Knee.  The STR documented a left knee injury in May 1999 which was diagnosed as a meniscal tear (without ligamental injury) by magnetic resonance imaging, and the CI underwent arthroscopic repair in November 1999 (7 months prior to TDRL placement).  The NARSUM was dated a month prior to the surgery and documented “no effusions or laxity” and “full” ROM.  Other than confirmation of the lack of an effusion, there was a paucity of post-operative evidence probative to rating in the STR; but, there was no suggestion of instability, impingement (locking), or significant ROM limitation.  As with the wrist condition, there was no contributing VA or STR outpatient TDRL evidence.  The 2003 mid-TDRL reevaluation documented “left knee symptoms...have not changed...occasional mild sense of instability and pain” without elaborating functional limitations (recall full-time employment).  The physical examination recorded crepitus without tenderness and “full” ROM.  There were no comments regarding effusion, laxity, or impingement.  The final TDRL examination did not provide any probative evidence for the knee condition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s TDRL and permanent 10% ratings analogous to 5003 (degenerative arthritis) were consistent with VASRD §4.71a criteria for the Service ROM evidence (conceding painful motion) and other ratable findings.  The VA provided only an initial 10% rating under 5003 which subsumed bilateral knees with other spine and joint conditions.  Although there was no measured ROM for the right knee in evidence, it is clear that ROM was preserved both at TDRL placement and at permanent separation; and, there was no ROM evidence supporting a rating higher than 10%.  Although there was no objective confirmation of no locking or instability, there was no reason to suspect either; especially since the documented absence of effusion would deny a 20% rating under code 5258 (cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and [emphasis added] effusion into the joint); and, the imaging confirmation of intact ligaments would defeat any speculative argument for additional rating of instability.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the right wrist condition for the period of TDRL and at permanent separation.

Contended Left Foot.  The STR documented an onset of this condition from a fall in 1996.  The CI complained of persistent pain localized to the metatarsal-phalangeal (MTP) joint of the great toe, and a subsequent bone scan demonstrated degenerative changes of that MTP joint and a suspected fracture of the medial sesamoid (a small accessory bone at the base of the big toe).  There were no STR entries indicating treatment or issues with the foot until 2000 in the period leading up to the MEB.  One of these noted the presence of chronic left foot pain (localized as above) and an antalgic gait, but this was in the setting of a recently sprained left ankle.  A subsequent rheumatology entry included the complaint with multiple other joint issues, and attributed an antalgic gait to the knees and/or back.  The NARSUM did not elaborate specific symptoms or functional limitations referable to the foot; and, the physical examination recorded normal ROM and stability of both ankles, but no specific foot findings.  The NARSUM diagnosis of “degenerative disease of the left foot” was premised on findings from a repeat bone scan.  The commander’s non-medical assessment (NMA) did not specify different conditions or identify specific functional limitations attributable to any single condition.  The mid-TDRL examiner documented continued pain with weight bearing in the left great toe MTP area, which was affecting gait with intentional supination of the foot to avoid pain.  The examiner however noted that the CI “works on concrete with a lot of walking for his job” and was not using prescribed shoe inserts “due to inconvenience.”  There were later STR entries from a civilian orthopedist leading up to the final PEB which noted similar symptoms and findings, and discussed surgical options (no surgery ensued).  The VA initially included the left foot with the 5003 rating including the knees (as above), and when it was subsequently service connected as a separate condition, it was rated 0%. 

The Board’s main charge is to assess the fairness of the PEB’s determination that the left foot condition was not unfitting.  The Board’s threshold for countering Service fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The evidence from the TDRL period provided details which were reasonably applicable to the time of to TDRL placement; but, the determinant fitness adjudication is at the point of TDRL entry, and is not based on progression during TDRL.  The STR indicates that the condition was not clinically active for an extended period of time prior to MEB proceedings; and, there is no documentation in the STR, the NARSUM, or the commander’s NMA of functional limitations specific to the condition which would have rendered the CI incapable of continued service.  The TDRL evidence also indicates that there were no significant occupational limitations.  Furthermore, the condition was subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  All members thus agreed that there was insufficient performance based evidence suggesting that the condition significantly interfered with 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 contended left foot condition; thus, no additional Service disability rating is recommended.  

BOARD FINDINGS:  In the matter of the right wrist condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudications for the period of temporary retirement or at permanent separation.  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudications for the period of temporary retirement or at permanent separation.  In the matter of the contended left foot condition, the Board unanimously recommends no change from the PEB determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration.  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 20140516, 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 12 Apr 16

      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 USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC 
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC