RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00773
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20041216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Indirect Fire Infantryman, medically separated for “chronic pain, muscle wasting of the left lower leg” 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 - 20041014	VARD - 20050909	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Muscle Wasting of Left Lower Leg with Decreased Range of Motion Left Ankle 	5271	10%	Residuals, Left Ankle Swelling and Pain	5271	NSC	20050331	
Left Lower Leg Injury with Persistent Open Wound	Not Unfitting	Residuals, Left Lower Leg Shrapnel Injury	7804	10%	20050331	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Pain, Muscle Wasting of the Left Lower Leg with Decreased Range of Motion of the Left Ankle.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered a shrapnel injury (improvised explosive device) to his left lower extremity (LLE) on 17 October 2003 in Iraq.  This consisted of a single penetrating fragment to the anteromedial lower calf (mid-to-lower extensor muscles), and there were no other significant injuries.  He was evacuated and initially underwent multiple surgical debridements.  There was no bone or joint violation, no excessive muscle damage or tissue loss, and no indication of significant vascular or nerve injury.  No grafting or further surgical interventions beyond the initial debridements were required.  Wound complications are elaborated below for that condition, although the evidence relevant to all VASRD coding options for this condition is included.

Outpatient STR clinical entries documented the development of significant lower leg muscle atrophy, non-specific weakness without objective strength testing, and ankle edema without notation of tenderness.  Multiple entries documented non-specifically decreased ankle range of motion (ROM), although there was no evidence for measured ROM prior to the NARSUM.  There was one entry that recorded a normal gait and no other entries probative to gait.  There was no outpatient STR documentation probative to muscle fatigability or impairment of coordination, or of any other VASRD-ratable muscle or joint criteria. 

The 21 July 2004 MEB NARSUM examination, 5 months prior to separation, documented that the CI “continues to have … considerable pain with all activities of daily living.”  Profile limitations included running (or alternative walking event), lifting, and standing more than 10 minutes.  The physical examination recorded calf atrophy (4 centimeter difference in bilateral measured circumference), multiple varicosities, edema of the ankle and foot, and 4/5 strength (unelaborated except for “difficulty with doing toe raises”).  Measured ROM was dorsiflexion to 0 degrees (normal 20) and plantar flexion to 40 degrees (normal 45), without comment regarding painful motion.  

A 31 March 2005 VA orthopedic Compensation and Pension (C&P) evaluation, 3 months after separation, documented pain rated 4/10 on average with exacerbations to 6-7/10 by prolonged walking (~100 yards) and subjective weakness.  The examiner noted the occasional use of a cane “depending on the length of time he has to walk” without further comment regarding gait, although a general C&P examiner had documented an antalgic gait on 8 February 2005 (8 weeks after separation).  The physical examination recorded calf atrophy (3.5 centimeter discrepancy), “evidence of fascial scarring to the underlying fascial plane,” varicosities, and a stable ankle joint.  The examiner did not document objective strength testing or further probative findings except for ankle ROM measurements of dorsiflexion to 10 degrees and plantar flexion to 45 degrees, without comment regarding painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5171 (ankle limitation of motion) was for “moderate” ROM limitation, albeit acknowledging the muscle disability.  Code 5171 offers a maximum rating of 20% for “severe” limitation.  The VA assigned the same code, without subsuming any muscle injury; but, did not service-connect the ankle condition, citing the absence of ROM limitation or other “residual or chronic disability subject to service connection” from the C&P examination.  The VA however, did reference the C&P muscle findings in its 10% scar rating under code 7804.

The panel first considered whether the ROM evidence better supported the 20% rating of code 5271 for severe ROM limitation.  Although the 0% dorsiflexion in the NARSUM could readily be characterized as severe, this was mitigated by the normal plantar flexion and the improved dorsiflexion from the more temporally probative C&P examination.  Members thus agreed that a higher recommendation via code 5271 was not justifiable.  Given the absence of ankylosis or fracture with nonunion or malunion, there is no applicable joint code which would yield a rating higher than 10%.  

The panel next considered whether a higher rating was supported under the applicable muscle disability code, which in this case is code 5312 (Group XII, anterior muscles of the leg).  It was clear that the injury was to the muscle and not to the ankle joint itself, and muscle codes are commonly applied for rating penetrating injuries.  Code 5312 provides ratings of 10% for “moderate,” 20% for “moderately severe,” and 30% for “severe” muscle disability.  Rating of muscle disabilities relies significantly on cardinal signs and symptoms which VASRD §4.56 define as “loss of power, weakness, lowered threshold of fatigue, fatigue-pain, [and] impairment of coordination and uncertainty of movement.”  Members agreed that the evidence supported, either directly by physical findings or by logical extrapolation from the functional limitations, the presence of all of cardinal signs and symptoms except for impaired coordination or movement.  Members additionally agreed that the §4.56 criteria for the severe (30%) rating were not supported.  The severe rating references high-velocity or multiple low velocity missiles with extensive bone and soft tissue damage and findings of “loss of deep fascia or muscle substance … [that] … swell and harden abnormally in contraction” and, additionally specifies impaired coordination.

Having so concluded, the panel deliberated whether the 20% rating for moderately severe muscle disability could be supported versus the non-advantageous 10% rating for moderate disability.  The §4.56 criteria for the moderately severe rating reference “small high velocity missile or large low-velocity missile” and findings of “loss of deep fascia, muscle substance, or normal firm resistance of muscles.”  The moderate criteria reference “a single bullet, small shell or shrapnel fragment, without explosive effect” and findings of “some loss of deep fascia or muscle substance or impairment of muscle tonus.”  The moderately severe rating requires a “consistent complaint of cardinal signs and symptoms … and, if present, evidence of inability to keep up with work requirements;” whereas, the moderate rating requires “one or more of the cardinal signs and symptoms …, particularly lowered threshold of fatigue after average use.” Members ultimately agreed that the overall evidence was more fairly aligned with the moderately severe criteria than with the moderate criteria.  Although the mechanism of injury and physical findings were more consistent with the moderate description, the functional disability was better captured by the moderately severe language.  Reasonable doubt favored concession of the moderately severe criterion “inability to keep up with work requirements” as opposed to the moderate criterion of just “lowered threshold of fatigue.”  Members also agreed that, the functional impairment in evidence at separation (gait disturbance, limited walking and standing, residual ankle and foot weakness) imposed significant limitations on work requirements.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends a 20% rating for the left lower leg condition under code 5312.

Contended PEB Condition:  Left Lower Leg Injury with Persistent Open Wound.  The STR confirmed that the CI’s open shrapnel wound took an extended time to heal.  It was described as a 4 X 6 centimeter open and draining wound in an entry soon after evacuation, but subsequent entries described a shrinking wound and the development of healthy granulation tissue.  Multiple entries excluded the presence of significant infection.  At the time of the NARSUM, it was described as a “4 X 6 centimeter open wound that is slowly healing.”  It was submitted on the MEB DA Form 3947 as a “left lower leg injury with persistent open wound” that failed retention standards.  On 27 August 2004, the PEB returned the case stating that it could not be adjudicated until the open wound had resolved.  A 5 October 2004 MEB response affirmed that it had healed, referring to a 4 October examination that described the wound as “healed fully … mildly tender” with supporting photographs.  There was no evidence probative to separate fitness considerations in the commander’s statement or profile.  The post-separation orthopedic C&P examination (cited above) documented a “well-defined scar … [with] … no open ulcers, no open lesions.”  

The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  The panel also notes that the fitness impact from the overall injury, other than that directly attributable to wound characteristics, was subsumed in the above rating for the unfitting condition.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended wound condition, and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the left lower leg condition, the panel unanimously recommends a disability rating of 20%, coded 5312 IAW VASRD §4.73.  In the matter of the contended wound condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.

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

CONDITION	VASRD CODE	PERMANENT RATING	
Projectile Wound and Atrophy, Left Lower Leg	5312	20% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170017928, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,	
Enclosure