RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00726
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060329

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty, Infantryman, medically separated for “peroneal nerve palsy, right leg” and “chronic pain right thigh and knee,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “The Physical Evaluation Board [PEB] failed to accurately rate Sergeant or SGT Chasteen's nerve condition in accordance with the Department of Veterans Affairs Schedule of Rating Disabilities in effect at the time of separation. See 38 C.F.R. §4.124a.”  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 Medical Evaluation Board (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’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20060131	VARD - 20060828	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Peroneal Nerve Palsy, Right Leg	8532	10%	Peroneal Nerve Palsy, Right Leg… Residuals, Femur Fracture, Gunshot Wound to Right Distal Femur, Knee, and Leg	8599-8521	10%	20060629	
Chronic Pain, Right Thigh And Knee	5099-5003	10%	Residuals, Femur Fracture, Gunshot Wound…	5255	0%	20060629	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Right Leg Peroneal Nerve Palsy, Right Leg.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s peroneal nerve palsy began on 18 May 2005 after he sustained a gunshot wound resulting in right femur and fibula fractures.  He underwent a fasciotomy with several subsequent irrigation and drainage procedures, and was found to have a distal femoral condyle fracture for which he underwent an open reduction internal fixation (ORIF) on 28 May 2005. The CI developed paresthesias in the peroneal nerve region in the anterior medial leg, distal lateral leg, and the dorsum of the foot. 

During the 8 November 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported right leg numbness and tingling.  Physical examination revealed decreased sensation to touch of the right medial knee and medial calf with decreased toe dorsiflexion and strength.

An orthopedic clinic note, dated 16 November 2005, indicated the CI’s neurologic deficit was improving, but that he still could not walk without a cane and required an ankle fixation orthotic; he was also still attending physical therapy (PT) 3 times a week.  Upon examination, there was no effusion or instability.  Right knee range of motion (ROM) was 5-130 degrees (normal 0-140), and there was decreased sensation over the right foot dorsally and the first web.  

The 8 December 2005 MEB NARSUM examination, 3 months prior to separation, documented CI complaints of right thigh and knee pain, especially when it was cold or raining, and peroneal nerve paresthesias in the anterior medial leg, distal lateral leg, and the dorsum of the foot.  He also reported right leg numbness and foot drop.  Physical examination showed well-healed incisions in the right thigh, and knee ROM from -5 to 130 degrees.  There was no effusion or laxity, but sensation to light touch was decreased with numbness over the anterior medial aspect of the leg and knee all the way down to the dorsum of the foot and the first web space (consistent with superficial and deep peroneal nerve injury).  Posterior tibialis tendon and peroneal strength was normal, but tibialis anterior tendon strength was 4/5, and extensor hallucis longus strength was 2/5.  Gait testing showed a great toe drop, but the CI was able to clear his foot with walking and had a mild antalgic gait on the right with good foot progression.

At an orthopedic clinic visit on 20 January 2006, the provider referred to an electromyogram (EMG) study from 9 January 2006 which showed findings of mild to moderately severe, distal peroneal nerve damage to the right knee, consistent with physical examination findings.  The CI was not having foot drop problems with gait at the time, and further intervention was deferred.  

At the 29 June 2006 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported gunshot wound residuals after a bullet “entered in the posterior proximal calf area, bounced around within shattering the proximal fibula, perforating the distal femur, and exiting through the soft tissues of the distal thigh posteriorly.”  Physical examination showed a slight limp with no assistive device, slightly red, tender scars with numbness of the surrounding skin, and numbness of the medial aspect of the distal half of the lower leg.   The provider noted the CI had “lost all dorsiflexion strength of the ankle and toes,” with ankle plantar flexion to 45 degrees (normal), but no dorsiflex beyond 0 degrees. The toes demonstrated “minimal, if any extension,” but could flex almost normally.
	
The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right leg peroneal nerve palsy condition 10%, coded 8523 (anterior tibial nerve (deep peroneal)), citing “moderate” in accordance with the US Army Physical Disability Agency (USAPDA) pain policy.  The VA also rated the peroneal palsy condition 10%, analogously coded 8599-8521 (external popliteal nerve (common peroneal)-mild), based on the C&P examination, citing “incomplete paralysis below the knee which is mild.”  Panel members noted the CI had loss of sensation, decreased motor strength of the tibialis anterior tendon and the extensor hallucis longus, loss of dorsiflexion strength of the foot and toes, and great toe drop.  Furthermore, an EMG revealed mild to moderately severe peroneal nerve damage distal to the right knee.   Therefore, based on the residuals of the traumatic injury, use of code 8521 was more applicable than code 8523.  Of note, the PEB considered the peroneal nerve palsy moderate, while the VA considered it mild, and the panel majority agreed that the condition reflected a moderate disability at the time of separation, warranting a 20% rating; a 30% rating was not indicated in the absence of a severe condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the right leg peroneal nerve palsy, coded 8521.  

Chronic Right Thigh and Knee Pain.  As mentioned above, according to the STR and MEB NARSUM, the CI sustained a gunshot wound to this right leg in May 2005.  He was admitted to the hospital from 23-25 May 2005 and diagnosed with open, non-displaced fibular and medial femoral condyle fractures.  At the time of the lateral fasciotomy, a delayed primary closure was performed with the saphenous nerve transected deep in the subcutaneous tissue, and the surgeon noting a “known peroneal palsy.”  On 28 May 2005, the CI underwent irrigation and debridement of the right femur, and an ORIF of the medial femoral condyle as well as an intercondylar split fracture of the distal right femur.  At an ER visit on 3 June 2005, the CI reported taking a narcotic pain reliever, and X-rays showed post-surgical changes of the right femur and fibula.  At a PT visit on 30 June 2005, right knee ROM after removal of his knee brace was 0-100 (normal 0-140) degrees, and then later measured at -4-120 degrees.  The girth of the right mid-patella was 41 cm compared to 36.5 cm on the left.  Right thigh girth was 4.5 cm (superior) and .5 cm (distal) less than the left, respectively.  Patellar mobility was within normal limits bilaterally.  On 5 July 2005, X-rays demonstrated multiple post traumatic features of the femur, tibia, and fibula with a triangular fragment of bone projected posterior to the patella, which may have been a loose fragment.  The CI continued regular PT sessions, and on 21 October 2005, quadriceps strength was 4/5 and hamstrings were 4+/5.  Amitriptyline (for nerve pain) and ibuprofen (a nonsteroidal anti-inflammatory drug) were prescribed in November 2005 for the right leg pain.  

During the MEB examination, the CI reported right leg numbness and tingling, and physical examination revealed pain with squatting.  The MEB NARSUM examination noted complaints of right thigh and knee pain, especially with cold, damp weather.  Physical examination showed right knee ROM from -5 to 130 degrees, without an effusion or laxity.  The fasciotomy incisions were well healed, but there was decreased sensation to light touch with numbness over the anterior medial aspect of the leg and knee down to the dorsum of the foot.  The examiner’s diagnosis was “right knee pain, status post malunited fracture of the right medial femoral condyle.”  At orthopedic visits on 8 December 2005 and 20 January 2006, ROM was 5-130 degrees.   There was no effusion and the right knee was ligamentously stable.  

At the C&P examination, the CI reported daily pain in his right knee, ankle, and shin.   Physical examination showed a slight limp without an assistive device, and multiple scars.  Knee ROM was from 0-130 degrees with normal strength and pain only at the end of flexion.  There was no additional limitation due to repetitive use and no joint instability.  Leg X-rays showed post-traumatic and post-surgical changes with a healed fibular fracture and surgical placement of screws across the distal femur.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic right thigh and knee pain 10%, analogously coded 5099-5003 (arthritis, degenerative), citing slight/constant pain IAW the USAPDA pain policy.  The VA rated the residuals, femur fracture, gunshot wound to right distal femur, knee, and leg condition 0%, coded 5255 (femur, impairment of), based on the C&P examination, citing a noncompensable evaluation for no malunion of the femur with slight knee or hip disability.  Members noted that although the PEB assigned a 10% rating for painful motion of the right knee, other coding options were appropriate for the fibula and femur fractures.  Nevertheless, there was insufficient X-ray evidence of malunion with moderate or marked knee disability to support a 20% or 30% rating under 5255 or 5262 (fibula, impairment of) since right knee ROM was essentially full and there was no abnormal patellar mobility.  Although quadriceps strength was 4/5, 5 months before separation, it was approximately normal at the VA examination, 3 months after separation, and there was no effusion, laxity, or ligamentous instability at any of the examinations proximate to separation.   There was no limitation of motion (5260, 5261), no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), and no evidence of ligamentous instability or laxity (5257).   Furthermore, there was no knee ankylosis (5256), dislocated semilunar cartilage (5258), semilunar cartilage removal (5259), or genu recurvatum (5263).  Therefore, the panel was in accord with the PEB’s 10% rating in the absence of X-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations.  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 chronic right thigh and knee pain condition.  

BOARD FINDINGS:  In the matter of the peroneal nerve palsy, right leg, the panel majority recommends a disability rating of 20%, coded 8521 IAW VASRD §4.124a.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.  In the matter of the chronic pain right, thigh and knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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; 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	
Peroneal Nerve Palsy, Right Leg 	8521	20%	
Chronic Pain, Right Thigh and Knee 	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170214, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180009930, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure