RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-00049 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20040815

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Rifleman, medically separated for “status post (S/P) gunshot wound [GSW] to the right side of neck” with a disability rating of 10%.

CI CONTENTION: Given a higher rating by the VA for the neck condition. The CI also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB, but determined by the PEB 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. The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate. 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 disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20040617	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P GSW to the Right Side of Neck	5299-5242	10%	No VA Examination in Evidence	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: NA	

ANALYSIS SUMMARY:

S/P GSW to the Right Side of Neck. According to the service treatment record and MEB narrative summary (NARSUM), the CI suffered a gunshot wound to the neck in April 2003 during combat operations in Iraq. He had fragments removed from his neck and residual shrapnel. There were no available records for the initial injury. The 11 January 2004 MEB NARSUM examination, 7 months prior to separation, noted complaints of significant neck pain and decreased range of motion (ROM) of the neck. Physical examination showed an 8 cm scar on the right side of the neck with decreased ROM in all directions and decreased mandibular opening (could not open the jaw all the way). The examiner indicated there was not much improvement despite extensive physical therapy.

During the 12 January 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported persistent right neck pain and decreased neck ROM. Physical examination revealed a right neck scar, jaw pain at the temporomandibular joint (TMJ) with slight right deviation of jaw with opening, right upper extremity weakness (4+/5 deltoid),

pain with resisted shrug and decreased neck ROM with right lateral movement. The DD Form 2697 additionally noted provider’s comment on retained shrapnel and debilitation to the point of inability to wear a pack.

A 12 February 2004 response to the CI’s rebuttal clarified that there was a small bb-sized piece of shrapnel near the fourth cervical vertebra approximately 1.5 cm lateral to the vertebral column, not close to the cord or other vital structures. Physician recommendation was to leave it in place. The 18 May 2004 MEB NARSUM addendum for ROM, 3 months prior to separation, showed forward flexion of 15 degrees (normal 45), with combined ROM of 240 degrees (normal
340) with discomfort (pain) on lateral flexion. 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 neck condition 10%, analogously coded as 5242 (degenerative arthritis of the spine). The VA rated conditions related to the right neck GSW at 40% (jaw), 40% (residuals of GSW), 10% (disfiguring scar) and 10% (tender scar) effective 16 August 2004; however, no VARD narrative or specific disability coding information was available. The panel was limited by the absence of detailed physical examinations, treatment notes, VA pre-discharge examinations or VARD narratives. The panel agreed that a 30% rating was justified for limitation of flexion not greater than 15 degrees as reported on the NARSUM addendum IAW VASRD §4.71a. Given the evidence of record, there was insufficient evidence for any higher rating via alternative muscle, nerve or skin ratings.  After due deliberation, considering all the evidence and mindful of VASRD
§4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the right neck condition, coded 5299-5242.

BOARD FINDINGS: In the matter of the right neck condition, the panel recommends a disability rating of 30%, coded 5299-5242 IAW VASRD §4.71a.

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Status Post Gunshot Wound to the Right Side of Neck	5299-5242	30%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20160923, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

2	PD-2017-00049

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

IN REPLY REFER TO

1850
CORB:003
2 Jun 20

From: Director, Secretary of the Navy Council of Review Boards 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:   (a) DoDI 6040.44
(b) PDBR ltr of 7 Nov 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy for appropriate action.

2.	On 27 May 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR. Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from 10 to 30 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary’s determination, which represents final action in your case by the Department of the Navy, was sent to the office of the Deputy Commandant, Manpower and Reserve Affairs, for correction of your records as stated above.  You will be notified once those changes are complete.