RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  pd-2016-00140»
BRANCH OF SERVICE:  army	SEPARATION DATE:  20030305

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, M1 Armor Crewman, medically separated from the Temporary Disability Retired List (TDRL) for “gunshot wound right popliteal fossa with peroneal nerve injury” with a disability rating of 20%.

CI CONTENTION:  The VA rated the same condition at 40%.  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 review of disability ratings assigned 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 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 - 20030213	VARD - 20020724	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Gunshot Wound Right Popliteal Foss with Peroneal Nerve Injury	8521	20%	Incomplete Paralysis Right Peroneal Nerve	8521	30%	STR	
			Gunshot Wound Right Popliteal Fossa	5314	10%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Gunshot Wound Right Popliteal Foss with Peroneal Nerve Injury.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s gunshot wound right popliteal fossa with peroneal nerve injury condition began in November 2002 due to an accidental gunshot wound by a family member.  The CI sustained significant injury to the peroneal nerve, thought related to blast injury.

At the 8 January 2003 TDRL evaluation, 1 month before permanent separation, the CI reported the ability to ambulate without an ankle-foot orthosis, but complained of significant foot weakness in pushing off and lifting motions.  He reported numbness from the knee to the foot.  He took pain medication 1 or 2 times month after strenuous exercise or walking.  Physical examination showed well healed bullet wounds.  There was decreased sensation in the distribution of the peroneal nerve from the knee to the foot.  The CI was unable to walk on heel or toes on the right.  Muscle strength of the extensor hallucis longus, peroneal muscles, and toe extensors was graded 3/5.  There was no measurable muscle atrophy of the right calf.  There was an absent Achilles reflex on the right with a mildly abnormal reflex (one beat of clonus).  The TDRL examiner noted there was no gross foot drop appreciated.  The assessment was resolving peroneal neuropathy.  Follow-up with additional electrodiagnostic studies and neurosurgery for consideration of surgical intervention versus continued non-operative treatment was recommended and continuation on TDRL was recommended.

There was no VA examination in evidence proximate to separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the gunshot wound right popliteal fossa with peroneal nerve injury condition 20%, coded 8521 (common peroneal nerve), citing resolving incomplete paralysis of the peroneal nerve that was “overall improving.”  The 24 July 2002 VA Rating Decision, 11 months after TDRL placement and 7 months before permanent separation, rated the peroneal condition 30%, also coded 8521, based on service medical records to 2001 (TDRL placement).  The VA also assigned a 10% rating for gunshot wound in the popliteal fossa, coded 5314 (Group XIV muscle injury), citing “a through and through wound from a single bullet without residuals of debridement or prolonged infection with evidence of loss of strength, pain, fatigue and some loss of muscle substance or tone.”

At the time of permanent separation, the CI continued with numbness and weakness pf the right leg in the peroneal nerve distribution that was improved from the time of TDRL placement.  He reported using pain medication infrequently after strenuous exercise or walking.  He was able to walk without an orthosis.  Despite documenting significant muscle weakness in the peroneal distribution with testing during the examination, the TDRL examiner indicated there was no appreciable foot drop on inspection.  The panel agreed the evidence at separation supports a 20% rating for moderate incomplete paralysis of the peroneal nerve, coded 8521 and no higher as adjudicated by the PEB.  In this case the CI’s muscle weakness was in the distribution of the injured peroneal nerve.  Therefore, a muscle injury rating cannot be provided in addition to a peripheral nerve rating IAW VASRD §4.55 (principles of combined ratings for muscle injuries), which states that 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 panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the gunshot wound right popliteal fossa with peroneal nerve injury condition at permanent separation.

BOARD FINDINGS:  In the matter of the gunshot wound right popliteal fossa with peroneal nerve injury condition and IAW VASRD §4.124a, the panel unanimously recommends no change in the PEB adjudication at permanent separation.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160317, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014071, XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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.

	A copy of this letter has been provided to the counsel listed on your application XXXXXXXXXXXXXXXXXX
Sincerely,					      
						      					
Enclosure