RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02777
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20021213 	
DATE REMOVED FROM TDRL:  20050207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Signal Support Systems Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “right forearm muscle weakness with functional use of right hand and forearm, within normal limits with diminished gross grasp strength” 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 – 20020920/20050126	VARD - 20030102	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Right Forearm Muscle Weakness with Functional Use of Right Hand and Forearm, within Normal Limits with Diminished Gross Grasp Strength	5307	40%	10%	Post-Operative Residuals, Right Ulnar and Radius Fracture (Dominant)	5299-8616	30%	30%	
COMBINED RATING:  40% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Right Forearm Muscle Weakness with Functional Use of Right Hand and Forearm, within Normal Limits with Diminished Gross Grasp Strength.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right hand dominant CI  sustained closed fractures (fxs) of both bones of the right forearm in a motor vehicle accident in September 2000 and underwent surgery for open reduction and internal fixation on 10 September 2000.  Post-operative X-rays showed that the bones of the forearm were in anatomical alignment.  Orthopedic evaluation on 7 June 2001 noted decreased range of motion (ROM) with elbow, wrist, and forearm pain with use.  Ulnar nerve sensation was decreased but intact, without reported numbness or paresthesia.  Elbow X-rays were normal without degenerative joint disease (DJD); forearm X-rays showed healing fxs; and, wrist X-rays showed good reduction of the wrist joint without DJD.  A permanent profile prohibiting airborne operations was provided and aggressive occupational therapy (OT) for strengthening was recommended.  In late September 2001, the CI fell on his right wrist and re-injured it.  He reported numbness along the ulnar nerve.  Repeated X-rays noted no acute fxs.  Orthopedic evaluation on 11 October 2001 noted the original fxs were healed, but the nerve symptoms of the right forearm were “prob early sympathetic nerve dystrophy” and examination on 7 January 2002 noted the CI had improved elbow and wrist ROM due to therapy, but continued with nerve symptoms.  The CI’s right hand was cooler than the left with color changes, with aching and burning paresthesia on the ulnar aspect.  Wrist ROM noted the CI lacked 10 degrees of flexion and extension on the right compared with the left, elbow ROM was full, forearm supination was 85 degrees, and pronation was 75 degrees.  Despite treatment, the right forearm condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “right forearm bones fracture with resultant muscle and nerve damage of a permanent nature” for PEB adjudication.

An occupational therapy visit dated 6 May 2002 indicated the CI presented for a “power test for the MEB.”  The CI reported 0/10 pain.  Right wrist strength with extension was 43%; flexion was 30%; supination was 47%; and, pronation was 32% compared to the strength of the left wrist. Strength of the right forearm averaged 37.75% compared with the left.

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 29 May 2002, 6 months before placement on the TDRL, the CI reported pain, numbness, and tingling due to his forearm fractures treated with plates and screws.  Physical examination showed generalized tenderness of the right forearm up to the shoulder.  There was numbness of the ulnar nerve distribution in the forearm and hand.  Strength of the right fourth and fifth fingers was graded 4/5, elbow and shoulder strength was 5/5.  Circulation in the right hand was normal.  

At the MEB NARSUM examination on 29 May 2002 the CI reported right forearm and fourth and fifth finger pain, weakness, and numbness.  The physical examination cited the findings of the DD Form 2808 examination summarized above.  The MEB examiner indicated that the CI was unable to perform airborne operations, carry a rucksack, erect antennas, carry and/or fire a weapon, or fight from a prone position due to pain and weakness of the right upper extremity.  An addendum to the MEB dated 20 August 2002 cited the results of the OT power test noted above and indicated that right forearm power was 37.75% of that of the unaffected left upper extremity and reflected the overall strength of four muscle groups powering wrist extension, flexion, supination, and pronation.  

At the VA Compensation and Pension (C&P) examination on 16 October 2002, 2 months before TDRL placement, the CI reported right arm weakness, pain and tingling with pain of the shoulder, elbow, and wrist.  He reported numbness and tingling mainly in the middle, ring, and little fingers.  The CI rated pain at rest in the right forearm, wrist and hand as moderate and pain of the elbow as mild.  Physical examination showed well healed scars of the right forearm, with the scar on the extensor surface being mildly tender to palpation.  There was no evidence of muscle atrophy in the hand and grip strength was good bilaterally.  Strength of the interosseous muscles (ulnar nerve) was good.  There was pain of the hand, wrist and forearm with strength testing.  The fingers approximated the medial transverse fold of the palm.  The CI was able to tie shoelaces, fasten buttons, pick-up a piece of paper and tear it, and pick up a pin and grasped it tightly with the right hand.  He was able to write for approximately ten minutes until he developed pain and had “marked” difficulty twisting with the right hand.  There was normal appearance and full ROM of the thumb and all fingers, without pain or weakness noted.  Examination of the elbow was normal and ROM was full but caused forearm pain.  There was TTP of the right biceps tendon.  Shoulder ROM was “markedly reduced” and the examiner indicated it may be related to arm pain.  Strength could not be assessed due to pain.  There was decreased sensation to light touch and pinprick of the “whole of the right forearm, right wrist, and right hand.”  Upper extremity reflexes were symmetrical bilaterally.

At a TDRL evaluation on 11 August 2004, 6 months before TDRL removal, the CI reported pain and numbness in fingertips increased since being placed on TDRL, with occasional weakness in the morning.  He reported difficulty with lifting weights and doing computer work.  Forearm X-rays showed no evidence of surgical hardware failure.  The physical examination performed on 28 July 2004 showed elbow ROM of 0 to 130 degrees, wrist flexion and extension of 0 to 75 degrees each; pronation of 70 degrees and supination of 60 degrees; radial deviation of 70 degrees and ulnar deviation of 0 degrees.  Decreased strength was noted for grip, pronation, and supination.  Two point discrimination (sensation) was intact, but decreased in all fingers.  The TDRL examiner noted that the CI’s report of increased numbness appeared to be consistent with previous findings of the MEB and indicated “there appears to be no significant changes in his medical condition.”  The TDRL examiner also stated that the CI’s condition “is prone to episodic exacerbation and progress of his numbness and weakness.”  At an OT evaluation the same day the CI reported 0/10 pain.  The examination showed full elbow ROM, wrist extension was 45 degrees and flexion was 90 degrees.  The CI was able to make a full fist and extend the fingers.  Lateral pinch strength (median nerve) was decreased on the right compared to the left. (R 13, 15, 14 and L-19, 17, 18 pounds).  Gross grasp strength was also reduced on the right compared to the left (R 51-40-41 and L - 94, 104, 110).  Two point discrimination on the right was within normal and was described as “minimal functional loss.”  The OT assessment using active ROM was within functional limits, decreased grasp strength approximately 50% below the predicted normal value, but “within functional limits for most occupations” and “excellent” two point discrimination.  Electrodiagnostic studies of the right upper extremity performed on 10 August 2004 were normal without evidence of ulnar, median, or radial neuropathy.  There were was no VA medical evidence in record proximate to the date of TDRL removal.

The Board directed attention to its rating recommendation at TDRL placement based on the above evidence.  The PEB assigned a 40% rating, coded 5307 (muscle group VII injury, flexion of wrist, hand, fingers, thumb and pronator), for severe muscle injury citing weakness.  The VA assigned a 30% rating, coded as 5299-8616 (analogous to ulnar nerve neuritis) citing moderate incomplete paralysis of (dominant) wrist and finger movements, based on the VA C&P examination 2 months before TDRL placement.  

According to VASRD §4.55 (Principles of combined ratings for muscle injuries), “a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.”  The PEB chose to rate the CI’s right upper extremity disability under a muscle code and the VA chose to rate it using a nerve code.  The Board, IAW DoDI 6040.44, may not recommend a lower rating (TDRL or permanent) than that conferred by PEB.  There is no higher rating available under 5307 than for severe muscle injury as adjudicated by the PEB.   VASRD §4.55 (Principles of combined ratings for muscle injuries) also states that “the combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation of unfavorable ankylosis of that joint.”  In this case unfavorable ankylosis of the dominant wrist is rated 50%.  Therefore, even though the CI had weakness of the muscles controlling wrist flexion and extension (muscle groups VII and VIII), no higher rating than 40% can be provided with muscle injury codes, regardless of coding at TDRL placement.  The Board therefore considered if rating with a nerve code supported a higher rating.  Reflex sympathetic dystrophy (referred to in the STR as “sympathetic nerve dystrophy”) may be analogously coded to either neuritis or neuralgia under the appropriate nerve code. There is evidence that the CI experienced sensory disturbances related to the ulnar nerve, but the documented weakness of the forearm and hand involved muscles innervated by the median nerve and radial nerves as well.  There was also evidence of a wider distribution of decreased sensation at the C&P examination when the examiner noted decreased sensation of the whole forearm, wrist and hand. A higher nerve code such as 8512 (lower radicular group) which includes the radial, median, and ulnar nerves would cover the spectrum of noted weakness of multiple forearm and wrist motions.  Rating for moderate incomplete paralysis of the lower radicular group provides a 40% rating coded as 8699-8612 and the Board judged that the paralysis could not be characterized as “severe” for higher rating.  Therefore, there is no higher rating available for the right upper extremity condition at TDRL placement than 40%.  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 upper extremity condition at TDRL placement.  

The Board next directed attention to its rating recommendation at TDRL removal based on the above evidence.  The PEB assigned a 10% rating, coded 5307, for moderate muscle injury, citing forearm muscle weakness with functional use of right hand and forearm.  

The Board assessed the fairness of the TDRL rating decision based on the evidence proximate to temporary retirement; and, assessed the fairness of the permanent rating decision based on the evidence proximate to final separation.  The TDRL rating is not considered a benchmark for the Board’s permanent rating recommendation.  It is recognized that, in practice, PEBs may liberalize the TDRL rating (to the extent allowable) to meet the requisite 30% threshold permitting a period of TDRL.  This is in the member’s best interest at the time of temporary retirement, and does not mean that a lower rating at the time of permanent separation was necessarily unfair, even if perceived as incongruent with the subjective severity from one rating to the next.  Therefore, the sole basis for the Board’s permanent recommendation is its assessment of disability based on evidence proximate to the date of permanent separation compared to VASRD criteria in effect on that date.  There was no VA C&P examination proximate to the time of removal from TDRL, therefore the Board relied on the TDRL NARSUM and the OT evaluation in August 2004 for its rating recommendation at the time of permanent disability separation.  At the time of these evaluations the CI had limited forearm and wrist ROM that did not achieve greater than a 0% rating based on ROM alone.  The decreased sensation of the right hand was assessed as providing little functional impairment by the OT.  The CI had persistent weakness of grip strength, and pronation/supination of the forearm documented at the TDRL exam.  The OT measured grip strength to be 37% compared to the left after three repetitions, which was essentially unchanged since his placement on TDRL, but noted that the grip strength was “WFL [within functional limits] for most occupations.”  The TDRL examiner concluded that there had been no significant change in the CI’s “right forearm muscle weakness” condition, which was likely to have exacerbations and eventual progression of numbness and weakness.  The Board first considered rating under 5307 and agreed that at the time of permanent separation, the residual muscle injury could be characterized as moderate, for a 10% rating, but not moderately severe.  The Board judged that the lack of evidence of muscle atrophy and the fact that even given the significant decreased strength on the right compared to the left, this level of function (equating to 3-4/5 muscle strength on the scale frequently used to grade muscle strength from 1 to 5 out of 5 (3 equals movement against no resistance and 4 equals movement against moderate resistance)) argued against characterizing the muscle weakness as “moderately severe.”  However, IAW VASRD §4.55 as noted above, a rating for the Group VIII muscle weakness (extension of the wrist, hand, fingers, thumb and supinator) may be provided and combined with the Group VII rating as long as the combined rating remains lower than 50%.  The 5308 (Group VIII) weakness was also judged by the Board to be moderate, and not moderately severe, for a 10% rating.  Thus, utilizing muscle codes the recommended combined evaluation for the wrist weakness is 20%.  The Board next considered if a higher rating for the RUE was supported by rating under 8512.   The Board determined that persistent pain and numbness, with weakness of the degree noted at the TDRL evaluation, which was unchanged since the CI’s placement on TDRL, supports characterizing the incomplete paralysis of the lower radicular group as moderate rather than mild, which provides a 40% rating for the dominant upper extremity.  All Board members agreed that the incomplete paralysis of the lower radicular group did not approach the threshold for the next higher “severe” rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the right forearm muscle weakness condition at TDRL removal, coded 8699-8612.  

BOARD FINDINGS:  In the matter of the “right forearm muscle weakness” condition, the Board unanimously recommends no change in the PEB adjudication at TDRL placement IAW VASRD §4.73 and a permanent separation rating of 40%, coded 8699-8612 IAW VASRD §4.124a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Right Forearm Muscle Weakness 	5307	40%	---	
Right Forearm Muscle Weakness	8699-8612	---	40%	
RATING	40%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140506, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160011466, 

Dear 

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.   Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 

A copy of this decision has also been provided to the Department of Veterans Affairs and 
 
Sincerely,

Enclosure