RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02893
BRANCH OF SERVICE:  Army	BOARD DATE:  20150527
SEPARATION DATE:  20040827

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Medic) medically separated for a right upper extremity (RUE) condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  “Joint stiffness with decreased grip strength of his right hand” and “loss of sensation of his dorsal thumb and radial hand” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded five medically acceptable conditions (open fracture right trapezium, thumb metacarpal, and index finger metacarpal; thrombosed radial artery; lacerated APL tendon, APB, EPL, sensory branch of radial nerve and extensor carpi radialis tendon; partial laceration of the extensor indicis proprius and exterior digitorum communis tendon of the index finger; and right thigh wound healed) for PEB adjudication.  The Informal PEB adjudicated “stiffness and weakness of grip strength of his right hand (dominant side) with loss of sensation dorsal thumb and radial side secondary to injury to the sensory branch of the radial nerve and fractures of the right trapezium, thumb metacarpal and index finger metacarpal.”  The remaining conditions were found to be medically acceptable.  The CI made no appeals at that time 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 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:

IPEB – Dated 20040621	VA* – (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Stiffness and Weakness of Grip Strength, Right Hand	8599-8514	20%	Residuals of Blast Injury, Right Hand	8599-8514	20%*	20041215	
Open Fracture of Three Bones	Medically Acceptable	No VA Entry	
Thrombosed Radial Artery	Medically Acceptable	No VA Entry	
Lacerated Tendons, and the Sensory Branch of Radial Nerve	Medically Acceptable	No VA Entry	
Partial Laceration of Tendons	Medically Acceptable	No VA Entry	
Right Thigh Wound, Healed	Medically Acceptable	Scars, Right Thigh	7805	0%	20041215	
Other x 0 (Not In Scope)	Other x 5	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20040921(most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Upper Extremity (RUE) Injury.  In August 2003, this right-handed CI was injured by a rocket propelled grenade explosion.  He was medically evacuated from theater, and brought back to the United States.  He underwent numerous surgical procedures for the treatment of his injury.  After discharge from the hospital, he received physical therapy and occupational therapy.  In spite of all treatment efforts, he continued to have significant problems with his RUE and an MEB was initiated.  The April 2004 MEB narrative summary notes that his pain was daily and was rated at 3/10.  The pain was worse at night or with cold.  The CI had difficulty performing certain activities due to weakness and limitations with his right (dominant) hand.  His pain was exacerbated by weight lifting, typing, riding, or any activities involving pincer motion of his right thumb.

The MEB physical examination (PE) was performed on 13 April 2004.  PE of the right hand revealed partial loss of muscle strength.  His grip strength was 42% of normal when compared to the left (uninjured) side.  His tip-pinch was 41% of normal when compared to the uninjured side.  There were also some areas with loss of sensation.  The examiner made no mention of any ankylosed (frozen) joints.  The CI was able to actively appose his thumb to the tip of the other four digits.

The CI had a Compensation and Pension (C&P) exam 4 months after separation, on 15 December 2004.  The examiner wrote: “At present, he has severe dysfunction of the right hand.”  There was ankylosis at the first carpo-metacarpal joint.  The CI had significant difficulty apposing the thumb with the other digits.  He was unable to make a fist, and unable to normally grasp a pencil or spoon.  The CI reported that he had done some retail-type work for a friend and had marked difficulty using a cash register or computer keyboard.  He also had difficulty with any activity involving grasping with the right hand, or fine manipulation.  He was no longer able to play the saxophone.  He was able to dress himself, because he had changed the type of clothing worn.  Right wrist ROM was measured and is summarized in the chart below.

Right Wrist ROM
(Degrees)	MEB ~4 Mo. Pre-Sep
	VA C&P ~ 4 Mo. Post-Sep
	
Dorsiflexion (70 Normal)	45	17	
Palmar Flexion (80)	60	65	
Ulnar Deviation (45)	30	15	
Radial Deviation (20)	15	20	

The Board carefully reviewed all the available evidence, and directed attention to its rating recommendation.  As noted above, the Army PEB combined the right hand condition with the right wrist condition, and treated them as a single unfitting RUE condition characterized as “stiffness and weakness of grip strength of his right hand (dominant side) with loss of sensation dorsal thumb and radial side secondary to injury to the sensory branch of the radial nerve and fractures of the right trapezium, thumb metacarpal and index finger metacarpal.”

The Board evaluated whether or not it was appropriate for the hand and wrist to be “bundled” together.  The Board must determine if the PEB’s approach of combining the hand and wrist under a single rating was reasonably justified in lieu of separate ratings.  The Board must apply separate ratings in its recommendation if compensable ratings for each condition are achieved IAW the VASRD.  If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each “unbundled” condition was separately unfitting.  After due deliberation, the Board agreed that the evidence does not support a conclusion that each of the problems, separately, would have rendered the CI unable to perform his required military duties.  Specifically, the Board did not find the right wrist condition to be separately unfitting.  Therefore, the Board does not recommend a separate disability rating for each of the problems.  The Board determined that it is appropriate for the right wrist to be bundled with the right hand condition, and treated as a single unfitting condition.

Based on the RUE exams described above, the CI’s condition got worse during the 8-month period from April 2004 to December 2004.  The DOS was in the middle of this 8-month period.  At the December 2004 C&P exam, there was ankylosis at the first carpo-metacarpal joint.  The CI had significant difficulty apposing the thumb with the other four digits.  He was unable to make a fist, and unable to normally grasp a pencil or spoon.  The CI reported marked difficulty using a cash register or computer keyboard.  He also had difficulty with any activity involving grasping with the right hand, or fine manipulation.

The Board determined that it was more likely than not, that at DOS, the disabling RUE condition could best be described as “moderate.”  The Board felt that the impairment was greater than “mild,” and there was insufficient evidence to support describing the condition as “severe.”  The Board therefore determined that, IAW VASRD §4.124a, under diagnostic code 8599-8514 (analogous to incomplete paralysis of the radial nerve), a 30% disability rating was appropriate for moderate impairment of the dominant hand.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30%, coded 8599-8514 IAW VASRD §4.124a due to moderate impairment of the dominant hand.

Other MEB/PEB Conditions.  Open fracture of right trapezium, right first metacarpal, and right second metacarpal; thrombosed radial artery; Lacerated APL (abductor pollicis longus) tendon, APB (abductor pollicis brevis), EPL (extensor pollicis longus), ECR (extensor carpi radialis) tendon, and sensory branch of the radial nerve; partial laceration of the EIP (extensor indicis proprius) and EDC (exterior digitorum communis) tendon of the index finger; and right thigh wound, healed were noted to be medically acceptable by the PEB.  The Board’s main charge with respect to these conditions is to assess the appropriateness of the PEB’s adjudication.  The Board’s threshold for countering 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.  These five conditions were thoroughly reviewed by and considered by the Board.

The Board determined that these conditions were not judged by the MEB to fail retention standards.  Four of the conditions on the list were related to the unfitting RUE condition.  There was insufficient evidence in the record that any of these conditions, separately, caused significant interference with satisfactory duty performance.  None of these conditions constituted a separately unfitting condition for disability rating purposes.  After due deliberation, and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB findings and recommendations.  Therefore, 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 unfitting RUE condition, the Board unanimously recommends a disability rating of 30%, coded 8599-8514, IAW VASRD §4.124a.  In the matter of the other conditions (listed above), the Board unanimously recommends no change in the PEB findings and recommendations.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, 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 his prior medical separation:

CONDITION	VASRD CODE	RATING	
Stiffness and weakness of right hand, with loss of sensation dorsal thumb and radial side, due to nerve injury and fractures of the trapezium, first metacarpal, and second metacarpal 	8599-8514	30%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140611, 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 XXXXXXXXXX, AR20160003763 (PD201402893)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA