RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00753
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20070315

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 “shrapnel wound left buttock with residual left lower extremity pain” with a disability rating of 10%.

CI CONTENTION:  “PTSD in addition to injuries sustained in combat.”  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 based upon a 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 - 20070118	VARD - 20070330	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Shrapnel Wound Left Buttock with Residual Left Lower Extremity Pain	8720	10%	Status Post Shrapnel Wound, Left Hip/Buttock.( Claimed as
Chronic ,Pain Left Lower Extremity due to IED Trauma)	5317	20%	20070215	
			Scar, Medial Left Lower Leg	7804	10%		
			Scar, Left Buttock		10%		
			Scars, Lateral Left Lower Leg		10%		
			Left Fibula Fracture, Status Post IED Blast	5312-5262	0%		
Chronic Pain due to Trauma from an Improvised Explosive Device	Category II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Shrapnel Wound Left Buttock with Residual Left Lower Extremity Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI sustained shrapnel wounds from an improvised explosive device (IED) on 1 December 2005.  Three pieces of shrapnel remained in the CI’s body and was causing significant pain and numbness in his left gluteal (buttock) area and lower leg.  The MEB forwarded “psychogenic pain, site unspecified” for PEB adjudication.  At a general surgery evaluation dated 15 August 2006 the CI reported intermittent sharp pain the left gluteal region.  The examiner noted that based on radiographic findings the shrapnel was “in a relatively inaccessible location.  Surgical removal of the shrapnel would induce more tissue loss and would not be advisable.”  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 15 November 2006, 4 months prior to separation, the CI reported retained shrapnel from IED blast which resulted in pain with running and walking.  CI stated that he used OxyContin for pain.  The examiner observed that the left leg became numb and tingling with activity and there was decreased and limited use of the left leg.  The examiner also noted that the CI’s pain was being managed by the internal medicine department and he was taking OxyContin, 3 tablets, twice per day.  

The MEB NARSUM examination on 21 November 2006, 4 months prior to separation, noted complaints of constant 7/10 persistent aching pain.  There was increased pain and numbness in the left gluteal region and leg with running.  The CI reported left buttock and thigh pain without muscle atrophy.  He reported left leg muscle atrophy around the surgical site.  The physical examination showed a healed shrapnel wound on the CI’s left leg with normal gait, stance, and lower extremity strength.  There was some sensory abnormalities in the left leg.  There were scars visualized on the left leg and gluteal region.  The examiner noted that the CI was on MS Contin (narcotic) medication twice daily, Elavil for night time pain, and Celebrex (anti-inflammatory/pain), which did not relieve or control the pain.  The examiner noted that the opinion of two separate pain specialist was “that the patient will require narcotic use in order to function and control his pain.”

At the 15 February 2007 VA Compensation and Pension (C&P) evaluation, performed a month before separation, the CI reported daily left buttock and leg pain, which at times radiated to the ankles.  He described the pain as aching and sharp and occurring for an hour, three times daily.  The pain was rated 6/10 with physical activity and prolonged standing.  It was relieved by rest and the use of OxyContin.   The CI also reported intermittent left buttock and lower leg scar pain.  The examiner noted that the functional impairment was that the pain affected the ability to run long distances and stand for a long period of time.  The constant sharp and throbbing pain in his hip affected the CI’s ability to sleep, sit for a long period of time, and his ability to concentrate.  The constant sharp achy pain in his left buttock area caused pain in his left hip area with bending, therefore he was unable to run or jump.  The physical examination showed four tender, disfiguring scars at the left and right buttock and left lower leg.  Improvised Explosive Device (IED) entrance wounds on the left lower leg, left buttock and right buttock.  There was an exit wound visualized only on the lower leg.  Tender, hyperpigmented, disfiguring scars with abnormal texture were noted on the left lower leg, left buttock and right buttock.  There was no edema to the lower extremities or nerve damage appreciated.  The CI’s gait and range of motion (ROM) of the hips and lower extremities were normal.  The muscle strength and neurologic examinations were normal. Radiology examination performed on 15 February 2007 showed 2 foreign metallic bodies in the soft tissues with one located in the anterior portion of the proximal right thigh and the other in the buttock.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated shrapnel wound left buttock with residual left lower extremity pain under a single disability rating of 10%, coded 8720 (Neuralgia, sciatic nerve) and adjudicated the chronic pain due to trauma as a Category II condition.  The VA rated the shrapnel wound left hip and buttock at 20% coded 5317 (Group XVII function: extension of hip), based on the VA C&P examination a month before separation, citing “subjective complaints” and “X-rays revealing two retained metallic fragments.”  The VA also rated the four scars at 10% each, coded 7804(scar) and the left fibular fracture at 0%, coded 5312-5262(anterior leg muscle injury-fibula impairment of).  

Although VASRD permits combined ratings, it allows separate ratings for separately compensable conditions.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the VARSD combined rating criteria, each condition subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  If Board members determine by performance based fitness criteria that the conditions were reasonable justified as separately unfitting and is separately ratable; separate ratings are recommended.  The Board noted that the CI sustained injuries to the left buttock and lower leg.  The Board also noted that chronic pain due to trauma (left buttock and lower leg) were profiled (LIMDU) and implicated in the commander’s statement and NARSUM.  Board members or by majority agreed that the left buttock pain and lower leg pain would have independently resulted in the CI’s inability to perform the duties of his military specialty.  

The Board then directed attention to rating the left buttock pain secondary to retained shrapnel condition.  The Board noted that there was surgically inaccessible shrapnel retained in the left buttock which resulted in constant daily pain and required narcotic medication for control at a pain scale of 6/10.  Board members agreed that the left gluteal pain due to retain shrapnel met criteria for a moderate muscle injury for a 20% rating, coded 5317 (Group XII).  The evidence did not support an unfitting scar for an additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board determined that the left buttock condition was separately unfitting and recommends a disability rating of 20%, coded 5317 in accordance with (IAW) VASRD §4.73.  

The Board then directed attention to rating the left lower leg pain status post fibula fracture and IED injury.  Although the CI sustained muscle injuries to the left lower leg muscles, the NARSUM and VA examinations did not evidence muscle damage to the anterior lower leg muscles (normal strength and tone).  The Board noted that the primary functional impairment was due to pain in the lower leg.  The Board also noted reports of lower leg numbness with running and radiographic evidence of a healed left fibula fracture.  Board members agreed that the evidence supports a 10% rating for mild neuralgia of the external popliteal nerve, coded 8721.  The evidence did not support an unfitting scar for an additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board determined that the left buttock pain condition was separately unfitting and recommends a disability rating of 10% the, coded 8721 IAW VASRD §4.124a.  

The PEB also listed “chronic pain due to trauma from an improvised explosive device” as a Category II condition, a condition that is related to the primary unfitting condition and contributes to the primary unfitting condition.  The Board’s first charge for this Category II condition (conditions which contribute to the primary unfitting condition) is to assess whether it can be reasonably justified as separately unfitting for rating consideration.  The Board’s threshold for such determinations is reasonably unfitting and remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board found that pain was the primary functional impairment of the left buttock and lower leg conditions.  Board members agreed that the chronic pain due to trauma was related to the primary condition and does not qualify for a separate rating.  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 shrapnel wound.  
BOARD FINDINGS:  In the matter of the left buttock pain secondary to retained shrapnel, the Board determined that it was separately unfitting and unanimously recommends a disability rating of 20%, coded 5317 IAW VASRD §4.73.  In the matter of the chronic left leg pain, the Board determined that it was separately unfitting and unanimously recommends a disability rating of 10%, 8721 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	PERMANENT RATING	
Left Buttock Pain Secondary to Retained Shrapnel 	5317	20%	
Residual Left Lower Extremity Pain	5312	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 17 Nov 16 ICO XXXXXXXXXXXXXXXXXX     
	(c) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 09 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 09 Nov 16 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (g) are approved.  The official records of the following individuals are to be corrected to reflect the stated disposition below:

     a. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 30 percent (increased from 10 percent). 

     b. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 30 percent (increased from 10 percent). 

     c. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 40 percent (increased from 20 percent).   

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 30 percent (increased from 0 percent).

     e. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.      

     f. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 
     
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)