RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00529
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20061109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “superficial scar, right foot” with a disability rating of 10%.

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 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 - 20060913	VARD –20070926	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Superficial Scar, Right Foot	7804	10%	Multiple Scars…Right Foot	7804	10%	STR	
Multiple Shrapnel Wounds in Buttocks, Right Leg, and Right Ankle	Not Unfitting	Multiple Scars…Right Leg	7804	10%	STR	
		Multiple Scars…Right Buttock	7804	0%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Superficial Scar, Right Foot.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI sustained multiple deep tunneling shrapnel wounds to his right lower extremity extending from his ankle to his right buttocks while deployed in July 2005.  The wounds required multiple surgical interventions.  X-rays showed multiple small metallic shrapnel fragments at the right ankle, lower leg and foot (calcaneus).

The 21 July 2006 MEB NARSUM examination and 15 August 2006 MEB Addendum, 4 and 3 months prior to separation, respectively, noted complaints of pain from shrapnel wounds, with increased right lower extremity pain with walking, weight-bearing or prolonged standing.  The CI reported the scars were painful, very sensitive, and caused, “especially the foot,” a lot of pain when carrying heavy loads or with weight increases.  Physical examination showed normal range of motion of the right knee and foot and the shrapnel wounds did not cause any impediment to his movements.  There were multiple right buttock, thigh, leg, and ankle/foot scars with palpable shrapnel very close to the surface on the heel and posterior aspect of the ankle and right foot.  The examiner indicated the CI was unable to do his military specialty (including soldiering activities) due “to pressure on his heels and leg.”  Detailed examination of the scars showed six right lower leg scars including one 3.5 cm by 2.5 cm scar which was indented, extremely sensitive and painful.  The right foot showed four scars including one which was 1 cm, round, reddish, inflamed, with ulceration and very painful.  There were two scars on the buttocks; one was 2.1 cm and indented, red, non-moveable, and slightly sensitive with loss of subcutaneous tissue.  The examiner indicated the buttock scars did not impede the CI from doing “any kind of activity.”  There were multiple smaller non-painful well-healed scars over the thigh and leg.  There was no VA examination proximate to separation in evidence.
 
The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot superficial scar 10%, coded 7804 (scars, superficial, painful on examination), citing pain on examination with weight bearing.  The VA also rated the right foot superficial scar 10%, coded 7804, based on STR review, citing a superficial scar that was painful on examination.

The panel applied the VASRD criteria proximate to separation in 2006 (§4.118 changed to the current skin criteria effective 23 October 2008).  The CI had one painful and/or unstable scar on his right foot/ankle with no evidence of loss of motion or limitation of motion.  Alternative coding as an unstable scar (7803) would offer no rating benefit.  There was insufficient evidence of significant muscle injury with cardinal signs and symptoms of muscle injury associated with the shrapnel wounds IAW VASRD §4.56 for alternative rating under VASRD §4.73 (schedule of ratings–muscle injuries).  There was therefore insufficient evidence for any rating higher than the 10% adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the right foot superficial scar.

Contended PEB Conditions:  Multiple Shrapnel Wounds of Buttocks and Right Leg.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The buttock and right leg conditions were both profiled and judged to fail retention standards in the single MEB (and profile) condition of “multiple shrapnel wounds in buttocks, right leg, and right ankle due to hand grenade ambush.”  The leg (“knee and ankle”) was implicated in the commander’s statement as interfering with duty performance, with the hip (buttock) being mentioned as part of the initial injury.  The examinations and information about the shrapnel wounds for both areas is detailed above with the unfitting right foot analysis.

Buttocks, Multiple Shrapnel Wounds:  The MEB NARSUM indicated the buttocks wounds did not interfere with function and the commander’s statement did not significantly implicate the buttocks or hip, and therefore the panel agreed the buttocks shrapnel wounds were not additionally unfitting.  There was no performance-based evidence from the record that the buttocks shrapnel wounds 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’s implied fitness determination for the buttocks shrapnel wounds contended condition and so no additional disability rating is recommended.

Right Leg, Multiple Shrapnel Wounds (Painful Scar):  The initial PEB listed “superficial scars, right leg and foot painful on examination,” but there was an administrative correction, reflected on a DA Form 18, by the US Army Physical Disability Agency, removing the right leg condition and listing the above right foot unfitting condition.  Given the profile, commander’s statement implicating the knee/leg, the MEB NARSUM examiner’s statement of the “heels and his leg” interfering with activities and a painful scar, the panel agreed the right leg multiple shrapnel wounds (painful right leg scar) condition was additionally unfitting and ratable.  After due deliberation, the panel agreed the preponderance of evidence, with regard to the functional impairment of the right leg shrapnel wounds contended condition, favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 7804 and meets the VASRD §4.118 criteria for a 10% rating.

BOARD FINDINGS:  In the matter of the right foot superficial scar and IAW VASRD §4.118, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended buttocks multiple shrapnel wounds condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.  In the matter of the contended right leg, multiple shrapnel wounds condition, the panel unanimously agrees it was unfitting and unanimously recommends a disability rating of 10%, coded 7804 IAW VASRD §4.118.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Superficial Scar, Right Foot	7804	10%	
Right Leg, Multiple Shrapnel Wounds (Painful Scar)	7804	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160830, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180000687, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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 decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
		
Enclosure