RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03750
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20070131

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Rifleman, medically separated for “Peripheral Nerve Injury Lateral Right Foot and Leg around the Sural Nerve Region and Superficial Peroneal Nerve Injury due to Antipersonnel War Bomb” 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 - 20061128	VARD - 20070412	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Peripheral Nerve Injury Lateral Right Foot and Leg around the Sural Nerve Region and Superficial Peroneal Nerve Injury due to Antipersonnel War Bomb	8722	10%	Peripheral Nerve Injury Right Leg/Foot	8520	10%	20070313	
Pronation Bilaterally	Cat II	Residuals of Shrapnel Wound Right Leg/Foot with Tender Scars to include Right Knee Pain	7804	10%	20070313	
Difficult in Walking involving the Foot and Ankle	Cat II					
Flat Foot Deformity Bilaterally	Cat II	Bilateral Pes Planus	5276	0%	20070313	
H. Pylori Gastritis with Reflux	Cat III	Gastroesophageal Reflux Disorder	7346	0%	20070313	
		H. Pylori	7399-7307	NSC	20070313	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Peripheral Nerve Injury Right Leg/Foot.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right lower extremity condition began in June 2005 after a blast injury (IED) with shrapnel to the right lower extremity.  Multiple shrapnel fragments were removed and the CI underwent physical therapy and specialty consultations for continued right lower leg pain.  Diagnostic imaging of the foot was unremarkable and an MRI was read as inconclusive or unremarkable for any remaining foreign body to the right lower extremity.  In December 2005 he was diagnosed with diagnosed with a right lateral sural nerve injury and superficial peroneal nerve injury secondary to contusion to the nerves or neuropraxia from the IED blast.  Electrodiagnostic testing in August 2006 for numbness in the right 4th and 5th toes was normal.  No further surgery was indicated.  He was issued a limited duty (LIMDU) and referred for a MEB.  The “injury to nerves, unspecified site,” “flat foot,” “other acquired deformities of ankle and foot,” and “difficulty in walking,” were forwarded to the PEB.  

At the MEB examination (recorded on DD Forms 2807 and 2808) and NARSUM dated September 2006, 4 months prior to separation, the CI reported daily pain at 7/10 with increase to 10/10 with strenuous activity.  Medications were an anti-inflammatory (Naprosyn) and neuroactive (gabapentin) medication.  Physical exam showed multiple, well healed lacerations to the right lower leg and foot.  There was no edema or erythema of the foot and vascular exam was normal.  Muscle strength was normal without discomfort against resistance.  Range of motion (ROM) of the feet was full with no crepitus.  There was a mild Tinel’s signs (pain or indications of irritation with tapping or compression) to the lateral forefoot with palpation of the superficial peroneal nerve area on the lateral calf.  The examiner indicated that limitations included inability to run, stand post, hump or carry over 10 pounds of weight for more than 15 minutes.  

At the VA Compensation and Pension (C&P) examination in March 2007, performed 1 month after separation, the CI reported right leg, knee, and foot pain with paresthesias (abnormal sensations) and no weakness.  He reported tender and painful scars on his foot that hurt with tight shoes, but wearing well-fitting and quality shoes eliminated the pain.  The CI also reported flat feet with relief wearing soft shoe inserts.  Physical examination showed normal posture and gait.  There was full normal ROM of the knee and ankle without pain or decreased motion following repetition.  There was no joint instability.  There were tender scars on the top of the right foot.  Both feet were flat and there were no calluses.  Achilles alignment was normal and there was no tenderness to palpation of the bottom of the feet.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 8722 code (neuralgia of the musculocutaneous nerve (superficial peroneal)).  The PEB listed the “pronation bilaterally,” “difficult in walking involving the foot and ankle,” and “flat foot deformity bilaterally” conditions as related diagnoses (Category II) that contributed to the disability in this case but were not separately ratable.  

The Board agreed that the “difficult in walking involving the foot and ankle” was a diagnosis related to the peripheral nerve injury and was not a separate condition which could be separately rated IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The “flat foot deformity bilaterally” with “pronation bilaterally” were not considered subsumed under the peripheral nerve condition and are addressed for potential separate rating below.  

The VA assigned a 10% rating using the 8520 code (incomplete paralysis of the sciatic nerve), citing mild sciatic impairment; a 10% rating using the 7804 code (scars, superficial, painful on examination), citing painful scars; and a 0% rating using the 5276 code (flatfoot, acquired), citing mild symptoms relieved by built-up shoes or arch support; all based on the VA C&P examination 1 months after separation.  

The MEB and VA examinations were similar and documented no greater than moderate neuralgia of the musculocutaneous nerve, or a mild neuralgia of the higher-level sciatic nerve warranting no higher than the 10% adjudicated by the PEB.  The Board deliberated on if the bilateral flat foot deformity with pronation was separately unfitting and ratable, however, even if separately unfitting, it would rate no higher than the 0% awarded by the VA, and therefore offer no benefit to the CI.  

The Board considered additional rating for the painful scars as awarded by the VA, however, there was not sufficient evidence to implicate the tender scars as interfering with performance of duty, and therefore no additional rating was justified on this basis.  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 and foot peripheral nerve injury and related category II conditions.  

Contended PEB Conditions:  H. Pylori Gastritis with Reflux.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not noted on any LIMDU or duty restriction or implicated in the NMA commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the right leg and foot peripheral nerve injury condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended “H. Pylori Gastritis with Reflux” condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  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 20140811, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 8 Aug 16

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC