RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01087
BRANCH OF SERVICE:  army	SEPARATION DATE:  20051104

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Cavalry Scout, medically separated for “painful scars, right medial knee, left upper gastrocnemius” and “chronic pain right arm and right leg,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “I was not given credit for all of my service connected disabilities as I should have been.”  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 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 - 20051021	VARD - 20051201	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Painful Scars, Right Medial Knee, Left Upper Gastrocnemius	7804	10%	Traumatic Scar, R. Calf	7804	10%	20050818	
			Traumatic Scar, R. Knee	7804	10%	20050818	
Chronic Pain Right Arm and Right Leg	5099-5003	10%	Traumatic Scars, Posterior R. Shoulder	7805	0%	20050818	
			Traumatic Scars, Anterior R. Shoulder	7805	0%	20050818	
			Traumatic Scar, Anterior R. Arm	7805	0%	20050818	
			Traumatic Scars, Posterior R. Arm	7805	0%	20050818	
			Traumatic Scars, R Hip	7805	0%	20050818	
			Traumatic Scars, R. Thigh	7805	0%	20050818	
			Retained Shrapnel R. Lower Extremity	5252-5313	0%	20050818	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Painful Scars, Right Medial Knee, Left Upper Gastrocnemius.  The PEB combined the right medial knee painful scar and the left gastrocnemius painful scar conditions under a single disability rating, coded 7804 (scars, superficial, painful on examination) and rated 10%.  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’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 the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was injured on 3 June 2004 by a rocket propelled grenade (RPG) attack.  He sustained multiple shrapnel wounds to his right arm (dominant), right hip, right upper leg, right knee, and right and left calf in June 2004.  He was hospitalized and wounds were debrided, with “porcelain and metal” small foreign bodies both removed and retained.  He was medically evacuated from theater on 18 June 2004, with further treatment and evacuation back to CONUS on 26 June 2003.  

The 18 August 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of right arm and right leg pain from combat injuries.  Physical examination showed scar plotting with multiple shrapnel entry scars on the anterior right thigh with painful scar above the right knee.  There was one scar on the left posterior calf that was painful to palpation.  There was full range of motion (ROM) and muscular strength of all extremities.  Diagnostic imaging showed foreign bodies in the distal right thigh and left knee.  Restrictions were no running, no ruck marching, and no jumping.  The diagnosis was chronic right arm and right leg pain.  

At the 18 August 2005 VA Compensation and Pension (C&P) examination, 3 months before separation (referenced on the MEB examination [recorded on DD Forms 2807-1 and 2808] as “See VA Dictation”), the CI reported injury by an RPG in June 2004 with pain in the right leg with flare-ups with exertional activities.  Physical examination revealed a normal gait.  There were multiple scars from shrapnel wounds with retained metallic fragments.  All joints had full ROM and normal strength.  Diagnostic imaging showed a foreign body in the distal right thigh and right knee.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the painful right medial knee scar and the painful left upper gastrocnemius scar conditions 10%, coded 7804 (scars, superficial, painful on examination), citing “maximum rating for painful scars is 10% under 7804.”  The VA rated the right knee traumatic scar 10%, coded 7804, and the traumatic scar right calf 10%, coded 7804, each based on the C&P examination, citing painful scars for each rating.  

The final PEB, following US Army Physical Disability Agency (USAPDA) opinion/direction that there was a maximum 10% rating for scars IAW 7804 (for any number of painful scars), changed their earlier 20% 7804 rating (indicating that that each scar was unfitting and ratable) to a 10% 7804 rating.  However, the VA rating, during the same timeframe, rated two painful scars on different areas as each separately rated at 10% using code 7804 for each painful scar.  The VASRD in effect at the time included notes under section §4.118 (schedule of ratings—skin) under codes for scars, other than head, face, or neck, that are deep or superficial (codes 7801 and 7802), which specified that “scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with §4.25 of this part.”  

The panel first noted that the NARSUM and C&P examination texts described right thigh and right calf painful scars from shrapnel, while the scar plot and PEB noted left calf (upper gastrocnemius) painful scars.  Radiographic report on the NARSUM showed a left knee area radiopaque density, while the C&P reported similar radiographic evidence of the right knee area.  The panel considered the possibility that the painful calf scar was on the right, with a possible scar charting error leading to the PEB left versus right disability description, weighed with the provisions of administrative regularity as well as lack of rebuttal between the original IPEB and the final PEB on the scars disability description.  The PEB also included chronic right leg pain in a separately unfitting and rated diagnosis of “chronic pain right arm and right leg” (see below).  

The profile, commander’s statement, NARSUM, and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either the right knee (thigh) and left (or right) upper gastrocnemius (calf) painful scars over the other.  Since undue speculation would be required to conclude that impairment from either shrapnel injury (painful scar/retained shrapnel) would not have unacceptably interfered with the performance of military duties, members agreed that each painful scar was reasonably justified as separately unfitting.  The panel therefore deliberated the unfitting right knee (thigh) and left (or right) upper gastrocnemius (calf) painful scars.  The panel consensus was that the NARSUM and specifically referenced scar plotting plate 3 was the examination closest to separation and aligned with the preponderance of the evidence.  There were no other ratable examinations proximate to separation (IAW §4.2 [interpretation of examination reports] and §4.70 [inadequate examinations]); the profile, commanders statement, and NARSUM all supported limitation of function of the affected parts; and that examination was the “ratable examination” adopted by the MEB, initial PEB, the USAPDA, and the final PEB.  

The principle discussion centered on application of VASRD code 7804 and if it was for only a single 10% regardless of the number and location of painful scars, or if the provisions under section §4.118 (schedule of ratings—skin) with other skin coding applied for multiple uses.  

The specific note under codes 7801 (scars, other than head, face, or neck, that are deep or that cause limited motion) and 7802 (scars, other than head, face, or neck, that are superficial and that do not cause limited motion) was “scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part.”  Of note, the 2005 VA rating decision, based on the C&P examination at the time of the MEB and NARSUM, separately rated the right knee scar and right (left?) calf scar at 10% each.  The panel considered the 2002 VA Proposed Rule (PDF (https://www.gpo.gov/fdsys/pkg/FR-2002-10-29/pdf/02-27408.pdf) discussing code 7804 ratings as well as multiple Board of Veterans' Appeals Decisions upholding multiple 10% ratings for painful scars in widely separated areas in numerous cases in 2004 and 2005 in determining that the VA’s interpretation and application of code 7804 rating criteria allowed separate application for a 10% rating for painful scars in separated areas.  By policy, the implementing agencies’ (VA) interpretation of their own guidance has precedence.  

The panel majority adjudged that, IAW VASRD policy and procedures for rating painful scars at the time of separation, there were painful scars in two widely separated areas and the 7804 10% rating was applicable to each painful scar separately.  Alternative rating under VASRD §4.73 (schedule of ratings–muscle injuries) IAW VASRD §4.55 and §4.56 would support a 10% (moderate) rating for each muscle group since there was initial hospitalization and debridement with ceramic or metallic fragments retained in muscle tissue as well as consistent complaints of pain on use; however, there was not sufficient evidence of moderately severe (20%) disability of muscles for either muscle group (5314 [group XIV] and 5311 [group XI]), and rating under code 7804 was considered predominant.  After due deliberation, and considering all of the evidence, the panel majority recommends a disability rating of 10% for the right knee (thigh) painful scar condition, and 10% for the left (or right) upper gastrocnemius (calf) painful scar condition, each coded 7804.  

Chronic Pain Right Arm and Right Leg.  The PEB combined the right arm pain and the right leg pain conditions under a single disability rating, coded analogously to 5003 and rated 10% with application of the USAPDA 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’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.  The right arm and right leg were injured in the June 2004 RPG attack noted above.  

The 18 August 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of right arm and right leg pain from combat injuries (see above for right leg).  Physical examination showed upper extremities had full ROM with normal muscular strength.  Reflex and sensory testing were normal.  Scar plotting documented five anterior upper arm shrapnel wounds and four posterior right upper arm shrapnel wounds, without indications of tenderness.  

At the 18 August 2005 C&P and MEB examinations, 3 months before separation, the right-handed CI reported injury by an RPG in June 2004 with pain in the arm muscle (feels like it locks up) and pain with flare-ups with exertional activities.  Physical examination showed multiple scars from shrapnel wounds with retained metallic fragments (the VA appeared to use the same scar plotting figure as the NARSUM (above)).  All joints had full ROM and normal strength without changes following repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right arm with the right leg condition and applied a single 10% rating coded analogously to 5003 with application of the USAPDA pain policy.  The VA rated the two right leg painful scars at 10% each, coded 7804 (as detailed above), and rated the right upper extremity at 0% under multiple 7805 (scars other) codes and not service connected under code 5302-5203 (group II muscle function – clavicle or scapula, impairment of) based on the C&P examination, citing no limitation of motion or painful motion or functional limitation.  

The panel first considered whether the right arm pain, when considered separately from the right leg pain condition, was unfitting for continued military service.  In this case, the right arm pain condition was separately implicated by the NARSUM.  Right arm and right leg pain were profiled, noted in the commander’s statement, and considered to fail retention standards.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right arm pain condition at the time of separation.  There was retained shrapnel with non-painful scars; however, there was no limitation of motion of the shoulder or objective findings such as swelling, muscle spasm, or satisfactory evidence of painful motion or other evidence of functional loss to support a separate 10% rating IAW VASRD §4.59, §4.40 or §4.45 or under VASRD §4.73 (schedule of ratings–muscle injuries).  

The panel next considered if the chronic pain right leg was separately unfitting and ratable.  The panel agreed that the right leg was separately unfitting, but that there was insufficient evidence of limited motion or objective findings such as swelling, muscle spasm, or satisfactory evidence of painful motion to support a separate 10% rating, especially considering VASRD §4.14 (avoidance of pyramiding) and the painful scar ratings above.  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 arm and right leg pain condition.  

BOARD FINDINGS:  In the matter of the painful scars condition, the panel majority recommends that each painful scar be separately adjudicated as follows: an unfitting right knee (thigh) painful scar condition coded 7804 and rated 10%, and an unfitting left (or right) upper gastrocnemius (calf) painful scar condition, coded 7804 and rated 10%, both IAW VASRD §4.118.  In the matter of the chronic pain right arm and right leg condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  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	
Painful Scar, Right Medial Knee (Thigh)	7804	10%	
Painful Scar, Left (Right) Upper Gastrocnemius (Calf)	7804	10%	
Chronic Pain Right Arm and Right Leg	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170309, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

MINORITY OPINION:  The minority dissent is confined to the majority conclusion that separate service ratings are justified for two painful scars as elaborated in these proceedings.  This dissent is based on a differing interpretation of the VASRD basis for the majority recommendations, and undue probative value assignment to a single examination.

With regard to the VASRD interpretation, there is a clear disconnect between the majority interpretation and the actual language of VASRD §4.118 in effect.  The PEB, the VA, and the majority recommendations all assigned ratings under code 7804 as excerpted below.
7804 Scars, superficial, painful on examination ......................................................... 10
Note (1): A superficial scar is one not associated with underlying soft tissue damage.
Note (2): [Not applicable, refers to digits and amputation rule.]
Per §4.118 in effect, the Note (1) quoted in these proceedings as justification for separate ratings is stipulated under codes 7801 (scars, other than head, face, or neck, that are deep or that cause limited motion) and code 7802 (scars, other than head, face, or neck, that are superficial and that do not cause limited motion).  It should also be noted that the rating criteria for codes 7801 and 7802 are based on area of body surface involvement and that the minimum 10% rating requires at least 6 square inches under 7801 and 144 square inches under 7802.  Thus, neither the applicability of the coding descriptions nor the threshold for minimum ratings are supported by the evidence for either of these codes.  The majority nevertheless insists that Note (1) stipulated under these codes remains applicable to this case.  The majority offers no explanation for why the actual Note (1) under the unequivocally applicable code 7804 is substituted by Note (1) under the inapplicable codes.  

The minority further notes that the PEB rating interpretation was supported by a legal opinion from the USAPDA, firmly establishing due diligence, and that the majority recommendation rests on the judgment of two panelists without a legal review.  The fact that a VA rater may have applied similar logic is not sufficient to support the majority position.  The minority asserts that it is more than reasonably clear that code 7804 does not provide for a rating higher than 10% and that it is the only applicable code supported by the evidence.

With regard to the probative value of the evidence on which the majority recommendation rests, it is entirely dependent on one document labeled “Scar Plotting Attachment – Plate 3.”  It is clearly a VA document.  This is the only evidence from the service and VA files that documents the separate and distinct tenderness of the two scars as requisite to the majority recommendations.  The NARSUM referenced and attached the scar plotting document which came from the C&P examination on the same day.  The NARSUM examiner (a physician) did not separately document, or specifically corroborate, those findings.  The C&P examiner (a physician extender) did not separately corroborate those findings.  The minority does not discount this evidence, but asserts that it is not free of probative value mitigation.  Tenderness is a variable and somewhat subjective sign, and a one-time finding of tenderness is fairly tenuous grounds for establishing the presence of a “painful” scar.  For evidence so critical to the majority rating rationale, the minority contends that at least some corroboration and less speculation should be expected.

The minority believes that the concessions required to uphold the majority recommendations constitute a stretch of reasoning with questionable application of DES principles.  Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that there be no re-characterization of the CI’s service disability determination. 

AR20180004926, 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

Sincerely,					      
Enclosure