RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX.	CASE:  PD-2016-00946
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040811

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, Indirect Fire Support, medically separated for “right arm, right hand and right foot pain,” with a disability rating of 20%.  

CI CONTENTION:  The CI made no specific contention.  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 - 20040615	VARD -  20040827	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Arm, Right Hand and Right Foot Pain	5099-5003	20%	Malunion of the Right Humerus 	5202	20%	STR	
			Right Hand Neuroma	8599-8515	10%	STR	
			Right Foot Neuroma 	8599-8523	0%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Right Arm (Dominant), Right Hand and Right Foot Pain.  The PEB combined the right arm, right hand and right foot conditions under a single disability rating, coded 5099-5003 (analogously to arthritis, degenerative) and rated 20% with application of the US Army Physical Disability Agency pain policy and AR 635-40 B24.f.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

According to service the treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI sustained injuries from an improvised explosive device on 2 March 2004 while on convoy in Iraq.  The CI underwent open reduction and internal fixation with an intermedullary nail into the right humerus fracture and irrigation and debridement of wounds to his right upper extremity.  During the May 2004 MEB examination (recorded on DD Forms 2807-1 and 2808) 3 months prior to separation, the CI reported shoulder/arm issues due to the rod placement and nerve damage and shrapnel in his right arm, right thigh and right knee.  Physical examination showed combat injuries with right arm fracture and wounds to right shoulder and leg.  Decreased range of motion (ROM) of the right shoulder was noted, but without actual measurements.  There was decreased sensation over the dorsum of the right foot and radial aspect of the right forearm and hand. Decreased strength of the right deltoid, right bicep and right foot dorsiflexors was noted but not quantified.  

The 10 May 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of continued pain in the right upper extremity and tingling in his right hand at the dorsum of the right web space and some burning sensation.  The CI also reported burning sensation over the lateral aspect of his right foot.  Physical examination showed multiple wounds consistent with a blast injury.  Wounds were well healed.  There was some moderated atrophy of the right deltoid and biceps, though he could fire each.  Light touch to the forearm and the hand was diminished, consistent with an injury to the first sensory radial nerve branch.  X-ray findings noted malunion of a proximal humerus fracture with an approximate 30 degree angulation apex anterior in the lateral plane.  The right lower extremity had diminished light touch sensation to the lateral aspect of his right foot.  The NARSUM addendum documented right shoulder ROM of flexion of 90 degrees (normal 180 degrees) and abduction of 85 degrees (normal 180 degrees) after repetitive motion with pain at the limits for each plane measured.  

The VA did not conduct an actual Compensation and Pension (C&P) evaluation and used STR to evaluate the CI based on the CI’s request.  However, they did conduct a ROM examination on 11 August 2004, the day of separation.  Right shoulder flexion was 125 degrees (normal 180 degrees) and abduction was 85 degrees (normal 180 degrees).  After repetition flexion was 128 degrees and abduction remained the same.  Painful motion was recorded.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the combined right arm, right hand and right foot conditions 20%, coded 5099-5003 (analogous to arthritis, degenerative), with application of the US Army Physical Disability Agency (USAPDA) pain policy.  

The VA rated the right humerus malunion 20%, coded 5202 (humerus, other impairment of), based on the C&P ROM examination done on the date of separation, citing malunion with a moderate deformity of the humeral head.  The VA also rated the right hand neuroma 10%, coded 8599-8515 (mild incomplete paralysis of the median nerve), citing incomplete paralysis of hand movements which was mild and a right foot neuroma 0%, coded 8599-8523 (anterior tibial nerve mild incomplete paralysis of), citing incomplete paralysis of foot movements which were mild.  

Right Arm Pain.  The panel first considered if the dominant right humerus condition met the panel’s threshold for separate rating (as elaborated above).  The right arm fracture malunion was profiled and failed retention standards.  The commander's statement stated the CI would have considerable difficulties performing basic infantry soldiering duties and was unable to qualify with his weapon due to his arm/shoulder problems.  Panel members agreed that the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties and accordingly a separate disability rating is recommended.  The VASRD §4.71a threshold for rating for ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion limited to this level.  A 20% rating was also justified for malunion with moderate deformity of the humerus as noted on the NARSUM X-ray findings.  There was no malunion with marked deformity or frequent episodes of recurrent dislocation of the humerus to justify a higher rating under the 5202 code (humerus, other impairment of), and no higher ratings available under the 5203 code (clavicle or scapula, impairment of). 

Right Hand Pain.  The panel next considered if the right hand neuroma of the radial sensory nerve was separately unfitting.  The profile listed nerve damage with a U3 profile determination and prohibited activities required of an Infantryman.  The commander stated as an infantryman the CI would have to perform duties requiring lifting, carrying a weapon and operating a mortar tube and would have significant difficulties performing basic soldiering skills.  Panel members agreed that the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties and accordingly a separate disability rating is recommended.  Although there was well documented sensory abnormalities of the right median nerve, there was no evidence of atrophy of the muscles of the thenar eminence, no difficulty with pronation of the forearm, weakness with flexion of the index or middle finger, difficulty making a fist (motor functions) to justify a minimum rating under code 8515.  There are no other applicable codes.  

Right Foot Pain.  Finally the panel considered if the right foot neuroma of the superficial peroneal nerve was separately unfitting.  The profile listed nerve damage with an L3 profile determination and prohibited activities required of an Infantryman.  The commander stated the CI could not complete a forced road march with field equipment of any length and could not participate in physical training.  Panel members agreed that the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties and accordingly a separate disability rating is recommended.  Panel members noted that the MEB NARSUM examination noted normal examination of the hip, knee and ankle.  The MEB examination found decreased strength of right foot dorsiflexion that was not quantified.  Given these two examinations, panel members agreed that the weakness (paralysis) of the anterior tibial nerve was mild at best and did not rise to the level of moderate to justify a 10% rating using code 8523.  There were no other applicable codes.  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 rating adjudication for the right arm, right hand and right foot condition.  

BOARD FINDINGS:  In the matter of the right arm, right hand and right foot condition and IAW VASRD §4.71a, the panel unanimously or majority recommends no change in the PEB adjudication.  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 «ApplicationDate», w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170015826, XXXXXXXXXXXXXXXXXX. 

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.

Sincerely,					      
						      					
Enclosure