RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02594
BRANCH OF SERVICE:  marine corps	SEPARATION DATE:  20040815

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Aircraft Communication/Navigation Systems Technician-Trainee, medically separated for “sural nerve injury, left leg” with a disability rating of 10%.  

CI CONTENTION:  “Please consider all conditions.”  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 - 20040617	VARD - 20051208	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sural Nerve Injury, Left Leg	8599-8529	10%	Sural Nerve Injury Left Lower Extremity with Numbness Left Ankle and Leg and Decreased Range of Motion Left Ankle	8599-8529	10%	20050811	
			Scar Anterior Left Shin Associated with Sural Nerve Injury Left Lower Extremity with Numbness Left Ankle and Leg and Decreased Range of Motion Left Ankle	7804	0%		
COMBINED RATING:  10%	COMBEINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Left Leg Nerve Injury.  The service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM) indicated the CI sustained a puncture to the left lateral leg with a Gerber multi-tool on 18 August 2003.  By 22 September 2003, the CI had pain and cramping along the left leg with pounding pain, burning and tingling over the lateral foot and the lateral 2 toes when running.  On 31 October 2003, the CI noted decreased sensation of the left lateral portion and plantar surface of the foot and ankle pain with walking up stairs.  On examination dorsiflexion was normal and plantar flexion and ankle strength were decreased.  The diagnosis of a probable nerve injury was made with the sural and superficial peroneal nerves most likely.  Neurontin (for nerve pain) was prescribed.  Neurologic evaluation on 1 December 2003, noted the CI initially felt stiff without numbness or weakness.  After running and excessive exercise over the prior 2 to 3 months following the accident, numbness and weakness of the left lower leg began and worsened.  On examination, the CI had minimal ability to dorsiflex and plantar flex and there was a reduction in sensation, worst along the peroneal and sural areas.  X-rays of the left leg, on 12 December 2003, showed a normal left tibia and fibula.  Electrodiagnostic testing revealed a severe left sural mononeuropathy (involving a single nerve).  The lack of peroneal nerve sensory responses bilaterally in the absence of other pertinent absences was considered not significant.  The left peroneal motor response was normal and an EMG [electromyogram] of the peroneal and posterior tibial distribution was normal.  There was no convincing electrical evidence for a peroneal neuropathy.     

An Abbreviated Limited Duty Board Report (LIMDU) was issued, on 2 December 2003 for 6 months, for a left common peroneal injury with limitations of no running, no prolonged standing and no climbing stairs.  The non-medical assessment, dated 24 February 2004, indicated the CI was not worldwide assignable and not capable of performing his duties or completing an entire standard physical fitness test.  The NARSUM, dated 18 February 2004, noted that even though the injury was confined to a sensory nerve, the CI was unable to run.  On examination, the CI had a healed 3 cm scar in the left anterolateral aspect of the leg below the knee, which was normal.  There was no atrophy in the calf and the CI had active dorsiflexion of the toes and ankle.  There was a sensory deficit, which involved the lateral half of the leg.  The diagnosis was sural nerve injury, left leg, secondary to a stab wound.  At the MEB examination, the CI reported on DD Form 2807-1 Report of Medical History, dated 8 March 2004, that he could not feel half of his left foot and lost over half of the range of motion of the foot.  Furthermore, he indicated he could not run because of nerve damage and his foot cramped up and hurt “bad enough.”  The MEB physical examiner noted on DD Form 2808, Report of Medical Examination, a scar on the left lower leg and referred to the PEB for details related to the lower extremities and neurologic evaluations.  

At the VA Compensation and Pension (C&P) examination, dated 11 August 2005, performed 12 months after separation, the CI reported diminished sensation in the lateral left foot, no sensation of the third or fifth toes, almost complete loss of sensation in the plantar surface of his left foot, an alternating cold or burning feeling in his toes, which waxed and waned, spasms of the toes, and diminished ROM in the ankle.  He worked as a roofer and missed work because of his leg.  He used no assistive device to ambulate.  On examination he had a slow gait and had some weakness with dorsiflexion of the left ankle.  He had almost total absence or significantly diminished vibratory sense in his whole foot, especially the lateral aspect of the plantar surface and third through fifth toe of the left foot.  He had no sharp-dull discrimination in those areas and protective sensation was also absent.  He had an approximately 4 cm ovoid, barely visible scar on the anterior shin, which was the exit wound; the entry wound on the lateral calf could not be appreciated.  There was no muscle atrophy.  Dorsiflexion was diminished in the left foot and was approximately 10 degrees and inversion and eversion were also diminished in the left ankle.

The Board directed its attention to its rating recommendation based on the above evidence.  The Navy PEB assigned a 10% rating using code 8599-8529 (external cutaneous nerve of thigh paralysis severe to complete) for a sural nerve injury, left leg.  The VA assigned a 10% rating using code 8599-8529 for the sural nerve injury of the left lower extremity with numbness of the left ankle and leg and decreased ROM of the left ankle.  A future exam was scheduled for September 2009.  The VA assigned a 0% rating using code 7804 (scar(s), unstable or painful) for a scar of the anterior left shin (not in the scope of review) associated with sural nerve injury of the left lower extremity with numbness left ankle and leg and decreased ROM left ankle.  The Board sought a route to a higher rating and noted that the code 8529 used by the PEB addressed the severe to complete loss of sensation of the thigh, but not the leg and foot, which were the areas of the symptoms and clinical findings of the CI’s disability.  The VASRD has no precise code for the sural nerve.  Anatomically, the medial sural nerve arises from the tibial nerve below the knee joint, while the lateral sural nerve arises from the common peroneal nerve above the knee and joins the medial sural nerve to form the sural nerve.  Therefore, use of one of several different codes is not unreasonable keeping in mind the sural nerve is predominantly a sensory nerve, but the CI also had a decrease in dorsiflexion of the ankle, both subjectively and objectively, at the VA examination, which was performed within the 12 month post-separation.  Analogous code 8599-8523 (anterior tibial nerve (deep peroneal) appears to be a reasonable option, but electrodiagnostic studies indicated there was no peroneal neuropathy; therefore, its use appeared to be limited, but not completely, since peroneal sensory responses were absent bilaterally on testing, and although their absence was considered not significant, it would be presumptive to assume their absence either unilaterally or bilaterally was equivalent to normal.  Nevertheless, electrodiagnostic studies indicated the sural nerve mononeuropathy was severe, which offers a 20% option.  The Board members had an in depth discussion of whether the CI’s condition rose to a severe level using the analogous code.  While code 8523 is predominately a code encompassing motor functions and clinically ankle dorsiflexion was agreed upon not to be severe, the use of the analogous code IAW VASRD §4.20, which states, “when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous,” does reflect somewhat better the severity of the overall sural nerve condition as well as bringing in the diminution of ankle dorsiflexion thereby affording a 20% rating compared to a moderate rating of 20%.   Code 8525 (posterior tibial nerve), which gives rise to a branch of the sural nerve and likewise offers a 20% option for an incomplete severe paralysis could encompass a portion of the mononeuropathy of the sural nerve noted by electrodiagnostic testing, but the CI’s sensory loss was lateral rather than medial.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the left leg nerve injury condition.  

BOARD FINDINGS:  In the matter of the left leg nerve injury condition, the Board majority recommends a disability rating of 20%, coded 8599-8523 IAW VASRD §4.124a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation.
  
CONDITION	VASRD CODE	RATING	
Sural Nerve Injury, Left Leg	8599-8523	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140206, 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 31 May 16 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 6 Jun 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 7 Jun 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 31 May 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 7 Jun 16 ICO XXXXXXXXXXXXXXXXXX

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

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

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

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

     c. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
     
     e. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

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

     g. XXXXXXXXXXXXXXXXXX, 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.