RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02973
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E3, Cavalry Scout, medically separated for “right tibial nerve shrapnel injury with chronic pain and paresthesias,” with a disability rating of 10%.

CI CONTENTION:  He was given a higher rating for his shrapnel injuries as well as other conditions by the VA.  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 - 20041129	VARD - 20050215	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Tibial Nerve …	8524	10%	Right Tibial Nerve Shrapnel…	8524	20%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:    

Right Tibial Nerve Shrapnel Injury.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), CI was injured in an improvised explosive device explosion with fragmentation to his right leg and head (not in scope) on 29 December 2003.  He had grade 4 to 5 toe flexors on the right and grade 4 to 5 toe extensors on the right without painful motion and was evacuated to CONUS.  A note dated 31 December 2003 indicated the CI had a right calf laceration with tibial anterior nerve damage.  He ambulated with crutches and was fitted for an ASO [ankle stabilizing orthosis] brace.  In January 2004, the post-deployment assessment indicated the CI had irrigation and debridement (I&D)) of the shrapnel wounds of the right lower extremity.  On 5 January 2004, the CI reported pain in the right calf and difficulty in ambulation.  On examination, the CI had decreased light touch sensation.  There was a 2 cm x 3 cm wound of the proximal calf with an apparent exit wound (1.0 cm x 1.0 cm) on the lateral calf.  The defect was palpable in the mid-gastrocnemius muscle belly.  There was no drainage or erythema (redness), but there was edema present.  Doppler testing of the post tibial and dorsal pedis artery pulses was normal.  There was 4/5 strength of ankle plantar flexion/inversion and 5/5 strength of plantar flexion/eversion.  On 9 January 2004, there was serosanguinous (blood and fluid) drainage without purulence.  Daily dressing changes were performed thereafter.  On 14 January 2004, the CI was able to do a heel rise without difficulty.  A physical therapy note dated 25 February 2004 indicated the CI had an antalgic gait and three obvious shrapnel wounds in his leg and a pain level of 6/10 (10 being the worst pain).  Range of motion (ROM) measurements are in the chart below.  The CI was tender throughout the belly of the gastroc soleus (muscles of the calf) group, primarily at the area of his wounds.  There was an increase of pain with resisted plantar flexion and altered sensation to light touch of the dorsal right foot.  In April 2004, the CI complained of throbbing pain all of the time with hypesthesia (decreased sensation).  Plantar flexion was 0-35 degrees.  Elavil (for nerve pain) was prescribed.  Electrodiagnostic studies demonstrated the presence of denervation in the tibial nerve distribution below the right knee and the right medial plantar nerve response was relatively slowed compared to the left side, which was suggestive of the tibial nerve injury below the right knee.  Neurological evaluation on 9 June 2004 noted the CI’s pain was actually getting better, but he had burning and tingling in his right forefoot, especially on the plantar side.  Recommendations to consider adding Vioxx (nonsteroidal anti-inflammatory drug (NSAID)) and/or Neurontin (for nerve pain) to amitriptyline for better pain control were made.   Physical therapy measurements on August 2004 are in the chart below.  In September 2004 a note indicated the neurosurgeon wanted to try pain management first before attempting a graft.   

At the MEB examination (recorded on DD Forms 2807 and 2808) dated September 2004, 4 months prior to separation, the CI did not report any complaints relating to the nerve injury.  The MEB physical examiner noted residual mild tenderness along the medial aspect of the right calf between the entry and exit wounds along with well healed scars on the bilateral lower extremities and left scalp from shrapnel.

At the MEB narrative summary (NARSUM) exam dated 9 September 2004, the CI stated his pain in the right lower extremity was mild to moderate and constant and he took a pain reliever as needed.  On examination, the ROM measurements of the right knee were flexion 135 degrees and extension 0 degrees and of the left knee 140 degrees flexion and 0 degrees extension.  The ROM measurements of the ankles bilaterally were normal and equal.  There was no clubbing, cyanosis or edema and the dorsal pedis and posterior tibialis pulses were normal.  There was tenderness along the medial aspect of the superior right lower extremity with normal strength in the lower extremities.  The neurologic examination was unremarkable and the CI’s gait was normal.  X-rays of the right tibia and fibula from 24 May 2004 showed bony structures demonstrating normal alignment without evidence of fracture.  A tiny 4 mm calcific opacity was seen in the soft tissue of the right lower leg near the proximal tibia and a tiny 2 mm metallic fragment was also within the medial soft tissue of the left leg.   Although the CI was able to ambulate, he could no longer bear significant weight on his leg and could not run at a fast pace or over a long distance.  An addendum dated 10 November 2004, noted electrodiagnostic testing was suggestive of a tibial nerve injury below the right knee that correlated clinically with a decreased right ankle jerk and decreased pinprick [sensation] in the right forefoot.  

At the VA Compensation and Pension (C&P) examination dated 5 March 2005, 2 months after separation, the CI stated he had shrapnel in both of his knees that gave him problems and complained of point tenderness around the right leg shrapnel incision.  ROM measurements of each knee were 0-130 degrees.  The CI seemed to be developing some claw toes that the examiner attributed to having no intrinsic muscles in his right foot.  He also had paresthesias over the plantar aspect of his foot.  His right leg had a posterior medial wound just below his knee joint that measured a 10 mm from the shrapnel wound and he also had two shrapnel wounds that were located directly over the anterior medial portion of the his knee. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 8524 (mild incomplete paralysis internal popliteal nerve (tibial) for a right tibial nerve shrapnel injury with chronic pain and paresthesias.  The VA assigned a 20% rating using code 8524 for a shrapnel wound of the right tibial nerve.  The Board sought a route to a higher rating and discussed a 20% rating as applicable in view of an antalgic gait, denervation of the tibial nerve, tenderness of the gastroc soleus muscle group, and early claw toe development.  Furthermore, the CI could not run or stand for a prolonged period of time.  The Board members also looked at code 5311 (Group XI muscles); however, the clinical findings were slight at 0% or at the most moderate at 20%, but the CI lacked the cardinal signs and symptoms of muscle injury IAW VASRD §4.56 of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.  Furthermore, VASRD §4.55 states:  (a) 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. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the right tibial nerve shrapnel injury condition.  

BOARD FINDINGS:  In the matter of the right tibial nerve shrapnel condition, the Board unanimously recommends a disability rating of 20%, coded 8524 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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Right Tibial Nerve Shrapnel Condition	8524	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140530, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160007951,  

Dear 

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical
Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure