RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2016-01390
BRANCH OF SERVICE:  Marine corps	SEPARATION DATE:  20040915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Aircraft Electrical Technician, medically separated for “right wrist non-dissociative midcarpal” with a disability rating of 20%.  

CI CONTENTION:  Review of all records regarding the right wrist fusion requested.  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 - 20040629	VARD - 20041116	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Wrist Non-dissociative Midcarpal	8599-8512	20%	Right Wrist Neurectomy	5299-5214	30%	20040729	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Right Wrist Non-dissociative Midcarpal.  According to the service treatment record and MEB narrative summary (NARSUM), the right-hand dominant CI underwent a diagnostic arthroscopy with an anterior interosseous nerve and posterior interosseous nerve neurectomy in October 2003.  At the 16 February 2004 MEB NARSUM examination, 8 months after the operation and 7 months prior to separation, the CI complained of weakened grip strength and right wrist pain.  The surgeon discussed surgical repairs, which were salvage procedures and unlikely to make the CI fit for duty.  The CI reasonably elected to forego surgery “until his wrist pain becomes completely disabling.”  Physical examination showed well-healed surgical wounds.  Right grip strength was 50% of the non-dominant left side, and the physician stated, “typically the dominant hand is 10% to 15% stronger than the non-dominant.”  There was dorsal wrist tenderness and a trial injection (for treatment of de Quervain’s syndrome - tendonitis) produced 40% relief of pain, but did not improve grip strength.  There was full range of motion (ROM) of the wrist and digits.  The examiner opined, “This directly interferes with his job as he is a mechanic and has difficulty with strength and coordination in his dominant hand.”  

At the 29 July 2004 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported right wrist weakness and constant wrist pain at times radiating down to the fingers.  Physical examination showed right wrist tenderness and decreased 4/5 motor strength in the right upper extremity at the wrist.  The ROM evaluation showed dorsiflexion of 45 degrees (normal 70) with pain at 40 degrees and palmar flexion of 60 degrees (normal 80) with pain at 50 degrees.  The ulnar deviation was 35 degrees and radial deviation was 15 degrees with pain at 30 and 15 degrees, respectively.  The examiner stated the ROM “of the right wrist joint [was] limited by pain, fatigue, weakness, lack of endurance and incoordination, with pain having the major functional impact on the veteran.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right wrist condition 20%, analogously coded 8599-8512 (paralysis of the lower radicular group).  The VA rated the right wrist condition 30%, analogously coded 5299-5214 (wrist, ankylosis), based on the C&P examination, citing objective evidence of painful and limited motion (dominant wrist), tenderness, and additional disability due to fatigue, incoordination, lack of endurance and right upper extremity motor weakness.  

Guidance under VASRD §4.124a (schedule of ratings for neurological conditions), states that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis.  Complete paralysis of the lower radicular group would be for “all intrinsic muscles of the hand, and some or all of flexors; flexors of wrist and fingers, paralyzed (substantial loss of use of hand),” but the CI’s disability picture did not approach that level, nor did it approach “loss of use of the hand” (code 5125) IAW VASRD §4.63.  

All examinations documented retained ROM of the right hand digits, but there was significantly decreased grip strength with coordination deficits.  The NARSUM examination showed the CI had only 50% grip strength of the non-dominant hand and the VA examination showed grade 4 muscle weakness (muscle strength is reduced but muscle contraction can still move the joint against resistance).  There was residual right grip strength which would not have approximated the “severe” incomplete paralysis level of disability.  

The panel deliberated if the CI’s right wrist condition more nearly approximated the next higher “moderate” incomplete paralysis rating analogous to code 8512.  The panel noted the CI had a neurectomy as well as painful motion, and coding as neuritis or neuralgia (8612 and 8712 IAW §4.123 and §4.124) would have a maximum rating of “moderate.”  Given the level of objective grip weakness and functional loss, including painful motion and incoordination, the panel majority adjudged the CI more nearly approximated the “moderate” disability picture at separation.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 40% for the right wrist condition, coded 8599-8512.  

BOARD FINDINGS:  In the matter of the right wrist condition, the panel majority recommends a disability rating of 40%, coded 8599-8512 IAW VASRD §4.124a.  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	
Right Wrist Non-dissociative Midcarpal	8599-8512	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161006, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

Minority Opinion.  The C&P examination, 2 months prior to separation, was clearly more indicative of the severity of disability at the time of separation than the NARSUM examination 7 months prior to separation.  The NARSUM examination took place only 4 months after surgery on the right wrist, whereas the C&P examination occurred 10 months post-operatively.  

At the C&P examination, motor strength was 4/5 with no atrophy recorded.  The majority recommends that 4/5 motor strength should be rated as moderate paralysis, which leads logically to the question, what strength would be indicative of mild paralysis?  5/5 motor strength?  4+ motor strength?  4/5 muscle strength indicates that the muscles moved the body part against resistance by the examiner, whereas 3/5 strength is movement against gravity only.  So, 4/5 strength indicates the CI had no paralysis per se, with his ROM limited by pain, not paralysis.  The main complaint the CI expressed at the C&P examination was pain, and he indicated that he suffered no lost time from work due to his condition.

The minority recommends no change to the 20% disability rating determined by the PEB.

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:       (a) DoDI 6040.44
	(b) PDBR ltr dtd 12 Jun 18 ICO XXXXXXXXXXXXXXXXXX	
             (c) PDBR ltr dtd 05 Jul 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 11 Jun 18 ICO XXXXXXXXXXXXXXXXXX 
	(e) PDBR ltr dtd 05 Jul 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 05 Jul 18 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 05 Jul 18 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (g) are approved.  The official records of the following individuals are to be corrected as follows:

     a. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 40 percent rating (increased from 20 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.  

     d. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.   

     f. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
 
3.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

                                  XXXXXXXXXXXXXXXXXX
                                  Assistant General Counsel
                                  (Manpower and Reserve Affairs)