RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02392
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081024

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E7, Military Police, medically separated for “right lower extremity weakness” with a disability rating of 20%.  

CI CONTENTION:  “Review all conditions.”  The 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 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 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 determinations 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 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 - 20080819	VARD - NONE	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Lower Extremity Weakness	8524	20%	No VA Examination in Evidence	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  N/A	

ANALYSIS SUMMARY:  

Right Lower Extremity Weakness (RLE).  According to the service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s RLE condition began in April 2007 after Army combative training, during which he sustained a rupture of his right Achilles tendon and damage to his tibial nerve.  Subsequently, he underwent surgery on 27 April 2007.  Surgery and physical therapy treatment did not result in improvement sufficient to allow unrestricted duty.  

During the 15 April 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported right lower leg pain.  The physical examination showed a tender swollen scar over his right Achilles tendon.  Right foot ROM was limited.  There was a noted loss of sensation of the lateral side of his right foot to toes 3-5.  
The 21 July 2008 MEB NARSUM examination, 3 months prior to separation, noted complaints of slight constant pain of his right calf and fatigue of his right lower leg with walking of more than one block.  The physical examination of the right lower extremity showed mild atrophy noted over the right calf muscle.  There are no skin changes noted outside of a 10cm scar posterior along the Achilles tendon area.  The pulses were normal.  Range of motion of the right ankle was showed dorsiflexion to 20 degrees (20 normal) with pain.  Active plantar flexion was to 32 degrees (45 normal) with pain.  Inversion was to 22 degrees.  Eversion was to 12 degrees.  Strength with dorsiflexion was 5/5.  Plantar flexion was noted to be weak at 4/5.  The CI was unable to do a toe walk primarily related to the pain and weakness in the right lower extremity and pain with dorsiflexion.  He was able to stand on his toes with both feet but could not do so with just the right.  His gait was mildly abnormal with decrease in cadence and step length and a decrease in right toe push-off in the gait sequence.  Sensation of the right lower extremity showed mild numbness over the lateral and bottom of the right foot.  

There was no VA claim for compensation and pension (C&P) or related evaluation in the record of evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right lower extremity weakness condition 20%, coded 8524 (internal popliteal nerve (tibial), Paralysis of: Incomplete: moderate), citing weakness and atrophy of the calf muscles on the right with 4/5 strength, as well as an altered gait due to shortened stride.  As stated above, there was no VA claim in the record of evidence.  The Board agreed that a 20% rating, but no higher, was justified for moderate incomplete paralysis of the tibial nerve as described on the NARSUM examination proximate to separation.  There was no limitation of motion which supported a higher rating under the diagnostic codes for limitation of plantar flexion or dorsiflexion (5270, 5271).  There was evidence of painful motion with functional loss supporting a minimum 10% rating (based on §4.59, §4.40 and §4.45) but would be of no benefit to the CI.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5262).  There was therefore no VASRD §4.71a route to a rating higher than the 20% adjudicated by the PEB under any applicable code, and no grounds for additional rating based on the presence of instability.  The panel next considered alternatively rating the leg condition IAW 4.73, coded as 5399-5311 (analogous to muscle injury of the posterior leg - Group XI).  The panel reviewed the rating criteria of 5311 which are subjective, with a 0% rating for `slight’, 10% rating for `moderate’, 20% for `moderately severe’, and 30% for `severe’ muscle injury.  The panel considered the discrimination between the `moderately severe’, and `severe’ characterizations which depends on the presence of at least one `cardinal sign or symptom’ of muscle injury specified as “loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement”.  For a “severe” rating it must also show the loss of deep fascia or muscle substance, or soft flabby muscles in wound area and that the muscles swell and harden abnormally in contraction.  The panel concluded that there was the presence of the cardinal symptoms of loss of power, weakness, lowered threshold of fatigue, and fatigue-pain, the right leg condition was best described as `moderately severe’ and but did not met the 30% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right lower extremity weakness condition.  

Contended PEB Conditions: Chronic Right Lower Extremity Pain.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The Army PEB’s diagnosis of chronic right lower extremity pain is intrinsic to the rated condition and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, it is appropriately subsumed in the same rating.  

BOARD FINDINGS:  In the matter of the right lower extremity weakness condition and IAW VASRD §4.124a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended chronic right lower extremity pain condition, 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, 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 20150925, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170012626, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
						      					
Enclosure