RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02368
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150512
SEPARATION DATE:  20060410

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Food Service Specialist) medically separated for right leg pain due to nerve damage.  These conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The conditions “right leg fragmentary wound” and “sural and tibial neuropathy of the right lower extremity” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition that met retention standards (see rating chart below).  The Informal PEB adjudicated “chronic right lower leg pain and paresthesias…” as unfitting, rated 20%.  The CI concurred with the PEB, but an administrative correction (Admin PEB) was made, changing the disability description to “internal popliteal neuralgia…” and “internal saphenous nerve (sural) neuralgia…” as well as changing the disability code from the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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:

Admin PEB – Dated 20060109	VA* - (~22 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Internal Popliteal Neuralgia 	8724	20%	Neuropathy…Right Lower Extremity	8520	10%	20080206	
Internal Saphenous Neuralgia	8727	0%					
			Scar Due to IED, Right Thigh	7805	0%	20080206	
Right Lower Lid Repair	Not Unfitting 	Residual Scarring, Right Eye…	6009	10%	20080205	
Other MEB/PEB conditions x 0 (Not in Scope)	Other x 5	
RATING:  20%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20080515 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Leg Pain Condition.  While deployed to Iraq in October 2004, the CI sustained a fragmentary wound to the right leg near the knee.  Although the wound subsequently healed, he continued to experience right leg pain and numbness.

At a physical therapy appointment on 30 June 2005 (9 months prior to separation) the CI reported that he was able to run 1/4-mile and “walk as desired.”  He could hop on his right leg and squat with no pain.  The CI underwent electrodiagnostic studies on 19 August 2005 for complaints of right lower extremity “numbness and subjective eversion weakness right foot.”  Physical exam showed normal muscle strength throughout and mild decreased light touch sensation on the top of the right foot.  Deep tendon reflexes of the lower extremity were normal.  The electrodiagnostic studies showed sensory loss of the right sural nerve and absence of sensory input of the right tibial nerve.  Motor (reflecting muscle strength) measurements were normal.  An orthopedic follow-up three days later reported that the CI could not run or jump.  Examination confirmed normal strength of lower extremity muscles.

At the MEB exam on 27 September 2005 (6 months prior to separation), the CI reported that he sometimes experienced tingling in his right leg, but most of the time it was numb.  The MEB physical exam noted an abnormal (limping) gait and an inability to walk on the heel or toes.  There was decreased strength “on right leg upper and lower” and decreased sensation of the right lower leg and foot.  Specific nerve or muscle impairment was not described.

At the narrative summary evaluation on 7 November 2005 (5 months prior to separation) the CI complained of right leg pain and numbness.  He was unable to run or stand for a prolonged period of time.  Numbness in the leg occurred intermittently through the night.  He took one medication for neuropathic pain (Neurontin) and one anti-inflammatory medication (Motrin).  Examination showed a normal gait.  There was a non-tender healed wound at the lateral knee.  Muscle strength of all muscles in the right lower extremity was normal, and equal to the left side.  Sensation to light touch was intact but diminished in the distributions of the sural and tibial nerves.  Knee range of motion was full.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated two separate ratings for the chronic leg pain condition.  Under the 8724 peripheral nerve code (neuralgia, internal popliteal [tibial] nerve) a 20% rating was assigned for “moderate” paralysis.  The PEB judged that the sural nerve impairment was best reflected by a 0% rating under the 8727 nerve code (neuralgia, internal saphenous nerve) for “mild to moderate” paralysis.  The VA assigned a 10% rating for right lower extremity pain based on an exam almost 2 years after separation, which was not probative to the time of separation.  In deliberating a rating under the 8724 code, the Board noted the muscle weakness and abnormal gait reported at the MEB exam.  However, these findings were not reported at any other exam, nor were they consistent with the electrodiagnostic studies in evidence.  The next higher 30% rating requires “severe” paralysis; but it was agreed this descriptor was not consistent with the evidence.  Next, the Board considered the PEB’s 0% rating under the 8727 code.  The sural nerve serves a purely sensory function limited to the lateral aspect of the distal leg and the lateral foot.  It has no relationship with the internal saphenous nerve, which provides sensation to the medial aspect of the leg.  The PEB may have chosen the 8727 internal saphenous coding pathway because it is the only VASRD code that reflects purely sensory function in the lower leg.  Nevertheless, since a significant portion of the sural nerve is an extension of the tibial nerve, impairment attributable to it is logically subsumed under the 8724 code, elaborated above.  However, the Board considered other coding options.  Under the 8520 code (sciatic nerve), which encompasses the tibial nerve and sural nerve, “moderately severe” paralysis is required for the next higher 40% rating, but it was agreed this was not described by the evidence.  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 leg pain due to internal popliteal neuralgia and internal saphenous neuralgia conditions.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that right lower lid repair 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 CI sustained a shrapnel wound to the right lower eyelid which required surgical grafting.  There was no visual impairment or residual muscle damage.  He complained of lid swelling when exposed to heat or outdoor activities.  Ophthalmologic evaluation on 9 November 2005 (5 months prior to separation) concluded there were no findings that affected duty performance.  The commander’s statement noted the history of eye injury, but only identified the leg condition as an impediment to duty performance.

The right lower lid repair condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed and considered by the Board.  There was no performance based evidence from the record that this 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 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 internal popliteal nerve neuralgia condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the internal saphenous nerve neuralgia condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right lower lid repair 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.

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 20140527, 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 XXXXXXXXXXXXXXXXXX, AR20150018838 (PD201402368)

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