RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00298
BRANCH OF SERVICE:  marine corps	SEPARATION DATE:  20041031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Machine Gunner, medically separated for “chronic pain syndrome” with a disability rating of 10%.

CI CONTENTION:  The CI contends that the Physical Evaluation Board (PEB) only rated one of his conditions at 10% (chronic pain syndrome, following ruptured appendix, status post appendectomy), but the Department of Veterans Affairs rated that same condition as three separate conditions at 30%, 10%, and 10%.  “For example, the PEB did not rate for scar tissue, although it was identified. The VASRD at the time required a minimum rating of 10% based on the measurable area of the scar. This is simply a number, and not subject to interpretation but is representative of the stark difference between [his] service ratings and the ones justified by the VASRD.”  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20040714	VARD - 20120628	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Syndrome… status post Appendectomy	7804	10%	Scars Anterior Trunk Residual of Appendectomy	7804	10%	20120113	
			Painful Scar Anterior Trunk Residual of Appendectomy	7801	10%		
Anesthesia Dolorosa, T-10 & T-11…	Cat III					
 …Myalgias & Arthralgias…Lyme Disease	Cat III	Lyme Disease	6319	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Pain Syndrome.  The VASRD §4.118 (Schedule of Ratings—Skin) policy for scars was amended effective 23 October 2008; therefore, based on the CI’s 31 October 2004 date of separation, the VASRD in force at the date of separation is used for determining the rating recommendation.

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent an appendectomy in June 2002 for a perforated appendix.  In September 2002 the CI underwent excision of the surgical scar and adhesions to the colon, with repair of an incisional hernia.  

On 31 January 2003, 21 months prior to separation, radiographic imaging of the pelvis reported “a subcutaneous scar/fibrosis…and infection with a deformity/scar/fibrosis of the…abdominal wall [with]…adhesions binding the bowel to the…anterior wall.”  A 25 February 2003 NARSUM (20 months prior to separation) for a local MEB indicated the CI was unable to perform duties “due to the thickened, tender scar” and concluded that “despite…management of postoperative…pain, the patient continues to have difficulty performing…duties.”  The local MEB placed the CI on 8 months of limited duty (LIMDU).

The 29 September 2003 pain management clinic (PMC) appointment, 13 months prior to separation, indicated it was unlikely the CI “would be able to participate in any type of strenuous activity that required any amount of bending, twisting, or lifting more than 25 pounds due his weakened denervated abdominal wall injury.”  

The 9 January 2004 MEB NARSUM examination, 9 months prior to separation, noted complaints of an inability to do sit-ups because of the tender, thickened scar.  The CI described shooting pains down to his right thigh unresponsive to nerve blocks and pain medication.  Physical examination showed a large vertical scar, halfway between the navel and the hip, extending from below the right edge of the ribcage down to the right pubic area.  The scar was hypersensitive with radiation of pain along the T-10 and T-11 nerve roots on the right side.  The CI had difficulty flexing his abdominal muscles and doing sit-ups.  

During the 26 January 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the CI reported numbness and burning when touched between the navel and scar.  Physical examination showed hyperesthesia (increased sensitivity) over the scar RLQ (right lower quadrant).  There was some mild right lower quadrant hypesthesia (decreased sensation), paresthesia (a burning or prickling sensation-pins and needles), and complaints of weakness of the right abdominal muscles.  

The 9 January 2004 MEB NARSUM, reported, “The patient, at this time, is unable to do sit-ups because of the thickened scar that runs…from the right upper abdomen to right lower quadrant of the abdomen. He has hyperesthesias involving the lower aspect of the incision at the T-10 to T-12 level, with marked tenderness.”

The Joint Disability Evaluation Tracking System (JDETS) notes for the informal PEB, dated 14 July 2004, indicated the CI “can’t do situps secondary to pain” and “unfit for abdominal wall pain.”

At the primary care clinic (PCC) examination on 12 August 2004, 3 months prior to separation, the abdominal surgical scar was noted to be large in the RLQ of the abdomen, measured at approximately 21.5 cm x 4.5 cm (at the widest point).  There was decreased sensation to pinprick from the scar to the navel (T8-9 to T12) along with decreased musculature.  The examiner’s diagnoses were chronic abdominal pain status post open appendectomy with complications, neuropathic pain and elements of denervation, regional pain syndrome, and abdominal musculature atrophy severely affecting activities of daily living.  

The CI submitted an appeal (dated 16 August 2004) requesting reconsideration for rating under both the 7801 (scars, other than head, face, or neck, that are deep or that cause limited motion) and 5319 (muscle group XIX) codes, for a combined rating of 30%.  JDETS notes for the reconsideration PEB (dated 20 August 2004) acknowledged the addendum information regarding weakness of the right abdominal wall.  The reconsideration PEB voted unanimously against a change. 

There was no VA examination proximate to separation.  At the remote (and therefore, offering no probative value)  13 January 2012 VA Compensation and Pension (C&P) evaluation, 98 months after separation, the CI reported the skin between the scar and navel had no sensation to light touch, but was hypersensitive.  He also indicated the scar was vertical, and that nerves had been severed and the abdominal wall in that region did not flex.  When he coughed or sneezed while lying down, the CI experienced a sharp, shooting pain radiating from the scar to the groin.  Examination revealed deep non-linear scars of the anterior trunk 20 cm x 3 cm and 2 cm x 1 cm, which were approximately 62 cm2.  The scars resulted in limitation of function and lack of sensation of the lower abdomen and asymmetry of the muscles (bulges).  As a result of the scars, the CI’s abdominal wall was weakened and he was limited with pushing/pulling/lifting, sit-ups, or any activity that required strain on the lower abdominal wall.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated chronic pain syndrome 10%, coded 7804 (scars, superficial, painful on examination).  The VA remotely rated (with no probative value) painful scars at  10% coded 7804 (scar(s), unstable or painful), citing “based on two painful scars of the anterior trunk” and 10%, coded 7801 (burn scars or scars due to other causes, not of the head, face, or neck), citing “Deep and nonlinear scar not of the head, face or neck in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 inches (77 sq. cm.).”   The VA rated under two separate scar codes due to a VASRD change effective in 2008 that included “Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.”  As noted above, the PDBR rating recommendation is based on the VASRD in effect at the time of separation, which did not include this note.

Panel members discussed coding options for the large, painful scar of the right abdomen and noted the PEB used code 7804, which Note (1) indicated:  “A superficial scar is one not associated with underlying soft tissue damage.”  However, the CT scan in January 2003 demonstrated “subcutaneous scar…adhesions binding the bowel to the…anterior wall.”  The panel determined the scar met criteria for rating via the 7801 code (scars, other than head, face, or neck that are deep or cause limited motion) and that the scar was not only deep, but also painful.  There was only one measurement in the STRs, with the scar measured at 21.5 cm x 4.5 cm at its widest point (96.75 cm2 at its widest point).  Members discussed whether that measurement was sufficient to rate the CI at 20%, which requires an “area or areas exceeding 12 square inches (77 sq. cm.).”  The panel majority determined that use of the widest point measurement was appropriate.  The panel discussed the remote VA measurements, more than 8 years after separation, hence of no probative value, but noted that they provided insight into the natural history of the scarring.  Those measurements were 20 cm x 3.0 cm and 2.5 cm x 1.0 cm (62.5 cm2).  While there is a disparity in the measurements between those during service and those more than 8 years post-separation, the service measurement was made at the scar’s widest point and scars shrink with time (unless the scar transforms into a keloid).  “The process of wound healing is dynamic and takes place over months to years, during which there is…continued wound contraction…”   (Junker JP et al.  Assessing quality of healing in skin: review of available methods and devices.  Wound Repair Regeneration 2014 May; 22 Suppl 1:2-10).  Therefore, the majority of panel members adjudged that although the measurement during service used the widest point for the width of the scar, no other measurements were present or sufficiently timely to use for rating purposes, so a 20% rating was appropriate.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the deep abdominal scar, coded 7801.

Contended Condition:  Anesthesia Dolorosa, T-10 and T-11 Nerve Distributions.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended anesthesia dolorosa (destruction of nerve cell connections) was not unfitting.  Chronic pain syndrome condition was addressed in the 8-month LIMDU approved on 20 March 2003, but anesthesia dolorosa (AD) was not.  The non-medical assessment (NMA) indicated the CI’s “medical condition” prevented military duties.  The AD was a component of the chronic pain syndrome (discussed above), but neural defects from T-10 and T-11 resulted in not only decreased sensation, hypesthesia, and pain, but also muscle bulging and weakness on the right abdomen, which prevented sit-ups and limitations of lifting.  The PMC examiner noted it seemed unlikely the CI “would be able to participate in any type of strenuous activity that required any amount of bending, twisting, or lifting more than 25 pounds due his weakened denervated abdominal wall injury.”  More importantly the finding of abdominal weakness was present, most notably at the 12 August 2004 PCC examination, where the examiner reported “abdominal muscular atrophy severely affecting ADLs.” The panel considered whether muscle weakness and atrophy were independently unfitting and a majority agreed that it was, not based on the previously discussed scarring or as a result of the pain (a component of AD), but instead as noted by the PMC examiner, who recorded denervation (loss or interruption of nerve connection to an organ or body part).  Though the PEB adjudicated the AD possibly represented an “abdominal wall neuroma or neuritis with entrapment of scar tissue,” it failed to take into account the motor components of T-10 and T-12, which are involved with muscles of the abdomen, through which surgical interventions occurred.   Furthermore, the NMA noted the CI’s medical condition did not allow him to complete his required day to day duties, and the majority noted that an infantryman requires full muscle strength and agility well beyond the 25-pound limit the PMC examiner noted.  The panel majority determined there was sufficient performance-based evidence from the record that the AD, T-10 and T-11 nerve distributions significantly interfered with satisfactory duty performance at separation.  

After due deliberation, the panel majority agreed the preponderance of the evidence with regard to the functional impairment IAW VASRD §4.40 (functional loss) of abdominal muscles favors its recommendation as an additionally unfitting condition.  Because there is no VASRD §4.124a disability rating for T-10 and T-11 motor deficits, coding for moderate (10%) disability is appropriate using 5319 (Group XIX - moderate disability).  The question of pyramiding was discussed in depth.  VASRD §4.14 (pyramiding) in effect at the time of separation reads, “The evaluation of the same disability under various diagnoses is to be avoided…the evaluation of the same manifestation under different diagnoses are to be avoided.”  The panel majority opined that this rating scheme would not be pyramiding since each condition is not only separately unfitting, but the scar was associated with pain and the functional limitations related to it (size, location, composition, bio-physiological factors, and neural interactions as well as a component associated with the AD) whereas muscle atrophy as a result of denervation clearly, separately impaired the CI’s military duties.  The pain component of AD would have been more appropriately designated a Category II condition by the PEB (conditions that contribute to the unfitting Category I chronic pain syndrome), but that technical difference is not recommended since it offers no benefit to the CI.

Contended Condition:  Multiple Myalgias and Arthralgias…Lyme Disease.   The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The conditions were not included in the 20 March 2003 LIMDU, or implicated in the NMA.  There was no performance-based evidence from the record that the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for these conditions, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic pain syndrome, the panel majority recommends a disability rating of 20%, coded 7801 IAW VASRD §4.118.  In the matter of the contended anesthesia dolorosa, T-10 and T-11, the panel  majority agrees that it was separately unfitting and recommends a disability rating of 10%, coded 5319 IAW VASRD §4.56 and VASRD §4.73.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended multiple myalgias and arthralgias, following tick-borne Lyme disease, the panel unanimously agrees that it cannot recommend it for additional disability rating.  There are no other conditions within the panel’s scope of review for consideration.  

The panel majority 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	PERMANENT RATING	
Chronic Pain Syndrome	7801	20%	
Anesthesia Dolorosa, T-10 and T-11	5319	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150511, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

Minority Opinion

The majority mistakenly recommends rating the scar based upon the single, insufficiently detailed in-service measurement, which only listed the widest part of the scar (approximately 4.5 cm).  The only fact that can be confidently surmised from this measurement is that the scar was less than the area used by the majority for rating, with the amount less being indeterminate.  So, the proposed 20% rating is based upon speculation, not the VASRD §4.3 (reasonable doubt) attributed by the majority.  VASRD §4.3 in effect at the time requires that ratings be “…consistent…with the facts…,” and the panel majority is only able to ascertain an aggressively speculative area of the scar, not a factual one.  So this proposed rating is in direct contravention of VASRD §4.3, not based upon it.  While the PEB arguably should have sent the case back for accurate measurements of the scar, any calculation of scar area based upon the single imprecise measurement while in service is speculation, and not based on fact.

The next error is to misconstrue AD as separately unfitting.  The disability in question was the inability to execute required duties (running, sit-ups, physical fitness testing, etc.).  The LIMDU NARSUM specifically attributed the inability to perform duties to the thickened, tender scar, as did the January 2004 MEB NARSUM.  Nowhere in these documents was there discussion of muscle weakness.  The NMA was not specific, instead attributing the inability to perform duties to the “medical condition,” and cannot be twisted to support a non-existent preponderance of evidence required to overturn the PEB determination of not unfitting.  A scar, whether deep, painful, limiting of motion, or not, is not unfitting in and of itself.  It must impose an unfitting disability on the CI, which in this case was the inability to do sit-ups, run, or lift weight.   If another condition (in this case AD) was then found separately unfitting and contributed to the same disability as the scar, how can the majority defend the proposed 20% for the painful scar (which imposed the disability of being unable to do sit-ups, run, lift weight, etc) as an accurate rating of the amount of disability imposed by the scar?

The final error, once the majority voted to find AD separately unfitting, is to rate that the same disability using both the 7801 code (scars, other than head, face, or neck that are deep or cause limited motion), and 5319 code.   Any limitation of motion (the disability for which the CI was separated) that could possibly be attributed to muscle weakness would be subsumed in the limitation of motion due to the painful scar (as described by the LIMDU and MEB NARSUMs).  The panel majority attempts to separate the pain aspect of the AD from the muscle dysfunction portion.  The majority is clearly and erroneously attempting to rate the same disability (the inability to perform sit-ups, running, physical fitness testing, etc) under various diagnoses when the proposed scar code already accounts for limitation of motion.  

The appropriate question is, what additive amount of impairment (inability to perform duties) might muscle weakness contribute to the disability?  And, if that muscle weakness component were removed from the equation, would the CI then have been able to perform duties either better or fully (sit-ups, running, lifting weight, etc.)?  The answer is self-evident.  The proposed separately unfitting muscle weakness would cause the same exact disability and manifestation of that caused by the painful scar, rating of which (the scar) accounts for limitation of motion, which is exactly what VASRD §4.14 proscribes.  The panel majority has an illogical basis for an additional unfitting condition, unsupported by a preponderance of evidence, and is in direct contravention of VASRD §4.14, avoidance of pyramiding.  This option was presented to, and properly rejected by the reconsideration PEB (as acknowledged in the JDETS notes).

The panel minority accordingly recommends no change in the rating.

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 26 Apr 17

      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:

		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXXXXX, former USMC 
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USMC

				   XXXXXXXXXXXXXXXXXXXXX
	     			   Assistant General Counsel
						                (Manpower & Reserve Affairs)