RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01954
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060314

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Indirect Fire Infantryman, medically separated for “left peroneal neuropathy” with a disability rating of 0%.  

CI CONTENTION:  “Review all conditions.”  The CI 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’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 - 20060111	VARD - 20060320	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Peroneal Neuropathy…	8523	0%	Left Peroneal Neuropathy	8523	10%	20060103	
Hearing Loss with Hearing Aid	Not Unfitting	Bilateral Hearing Loss	6100	0%	20060113	
Right Knee Pain	Not Unfitting	ITBS, Right Knee	5099-5024	0%	20060103	
Post-Traumatic Stress Disorder	Not Unfitting	Post-Traumatic Stress Disorder	9411	30%	20060106	
Reactive Airway Disease	Not Unfitting	Reactive Airway Disease	6699-6602	10%	20060103	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Left Peroneal Neuropathy.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI received a shrapnel injury to his left lower extremity (LLE) in November 2003 while deployed to Iraq.  This consisted of a single fragment over the mid-tibia that was extracted in theater.  The initial debridement and suturing was the only surgical intervention.  X-ray corroborated that there was no bone injury or retained fragments.  The CI suffered residual pain and intermittent sensory symptoms in his distal LLE that was diagnosed by neurology and electrodiagnostic studies (EMG/NCS) as damage to the distal deep peroneal nerve.  There was STR documentation of a normal gait and normal LLE strength with no contrary evidence.  There was no STR evidence of range of motion (ROM) limitation of the contiguous ankle or knee, of nerve impairment affecting coordination or balance, of fatigue with prolonged use, or of any additional VASRD-ratable findings.  

A neurologic addendum to the 10 November 2005 NARSUM was corroborated by and incorporated into the MEB NARSUM of 22 November, 4 months prior to separation.  The neurologist stated that the CI’s “numbness began to improve, but he has continued to experience intermittent tingling that is most pronounced with physical activity such as walking, running or prolonged standing...denies any leg weakness....”  The physical examination recorded normal gait and balance, normal (5/5) strength of all affected LLE muscle groups, and a mild sensory deficit of the lateral calf.  The NARSUM additionally documented “daily” LLE pain rated “slight [and] constant,” and noted “slight tenderness” over the shrapnel scar (medial tibia, just below the knee).  

At the 3 January 2006 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported “constant” pain, tingling and numbness, and subjective weakness of the distal LLE causing “difficulty standing and walking for prolonged periods, as well as difficulty negotiating stairs.”  The physical examination recorded a normal gait, “normal findings” of the tibia and fibula, normal measured knee and ankle ROM, normal LLE motor strength and reflexes, no incoordination or fatigue with repetition, and a similar sensory deficit to that described in the NARSUM.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LLE condition 0%, coded 8523 (incomplete paralysis of the deep peroneal nerve), citing the applicable 0% criterion of “mild” nerve impairment under the code.  The VA rated the condition 10% under the same code, based on the C&P evidence and citing the applicable 10% criterion of “moderate” nerve impairment.  VASRD Code 8523 offers a 20% rating for “severe” nerve impairment, and the highest 30% rating requires complete paralysis with loss of foot dorsiflexion.  

It was clear that the unfitting and ratable condition was the neuropathy caused by the shrapnel injury, and that the anatomically applicable nerve code 8523 was indicated for rating.  The panel thus agreed that no alternate code in pursuit of a more favorable rating could be justified; and, furthermore, there were no findings in evidence in support of ratable criteria under alternate codes (muscle disability or joint).  The panel then deliberated the fairest rating under code 8523.  Members first agreed that the evidence did not support a rating higher than 10% for moderate impairment.  Other than the neuropathic pain, the only objective nerve impairment was a distal sensory deficit without significant functional consequence.  In consideration of whether the overall nerve impairment was more reasonably characterized as mild (0%) or moderate (10%), members agreed that the functional limitations in evidence were more reasonably characterized as moderate.  Both the service and pre-separation VA evidence indicated that the neuropathic pain imposed limitations on standing and walking which would not meet the physical requirements of numerous occupations, and was therefore more reasonably aligned with moderate than with mild impairment.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the LLE shrapnel injury under code 8523.  

Contended PEB Condition: Post-Traumatic Stress Disorder (PTSD).  The CI first presented for mental health (MH) treatment in June 2004 after redeployment from Iraq 2 months earlier.  He was subsequently diagnosed with chronic PTSD that was treated with medication and psychotherapy.  There was earlier STR documentation of some loose suicidal ideation, but no planning or attempts.  There was no evidence of psychotic or other acute symptoms, serious disciplinary or legal issues, or psychiatric hospitalization.  There were numerous MH notes over an extended period prior to separation that documented a favorable response to medication, an improving and stable course, normal mental status examinations (MSE), and satisfactory duty performance.  The CI was planning to reenlist until his LLE condition prompted MEB proceedings.  

The NARSUM documented a psychiatric opinion that the MH condition met retention standards subject to a permanent S2 profile.  The commander’s performance statement implicated only the LLE condition.  A 6 January 2006 VA psychiatric C&P, 2 months before separation, documented some active symptoms that had been denied in contemporary STR notes, and which served as the basis for the VA’s 30% rating charted above.  The recorded MSE was normal except for mood disturbance, with no suicidal ideation or other acute features, and there was normal cognition.  

The panel’s main charge is to assess the fairness of the PEB determination that the PTSD was not unfitting.  Members agreed that a preponderance of service evidence indicated that it was not.  The CI had been cleared for retention from the MH standpoint, and his desire to reenlist indicated that he agreed with that assessment.  The commander’s statement did not implicate a MH condition or impairment.  A level 2 profile does not mandate MEB referral and is not typically associated with unfitting limitations.  The probative value of the pre-separation VA evidence was mitigated by the contrasting service evidence and also did not document any inherently unfitting impairment.  Although the CI may have manifested some MH symptoms at separation, there was no performance-based evidence countering the MEB psychiatric opinion that the PTSD was stable and compatible with continued service.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for PTSD.  

Contended PEB Conditions: Right Knee Pain, Hearing Loss, and Reactive Airway Disease.  The CI suffered an onset of right knee pain with running in 2003 that was diagnosed as ligamental strain (iliotibial band syndrome).  There were numerous STR entries that documented normal ROM with no instability or meniscal impingement (normal gait as above).  The NARSUM documented chronic pain aggravated by running and impact activities, but recorded a normal examination with full painless ROM, and opined that the condition met retention standards.  The L3 profile incorporated both the LLE neuropathy and right knee pain, although there were no listed restrictions specific for the latter.  As above, the condition was not implicated in the commander’s statement.  The pre-separation C&P examination (same as for LLE condition) documented similar findings as the NARSUM and opined that “there is no functional impairment resulting from the [right knee] condition.”

The CI was discovered to have a mild hearing loss in his right ear during MEB screening.  He was dispensed a hearing aid, and an H2 profile was provided.  All audiometry evidence (including VA) was consistent with a 0% rating.  The CI also presented with a complaint of exertional wheezing during MEB proceedings (October 2005).  He was diagnosed with reactive airway disease, although there were no significant abnormalities by pulmonary function testing.  This was treated with a rescue inhaler as needed and a P2 profile was provided.  The NARSUM documented use of the inhaler “about 2-3 times a week” with relief of symptoms and “no significant limitation or dysfunction otherwise.”  Both the hearing and pulmonary conditions were judged to meet retention standards and, as above, were not implicated by the commander.  

The panel’s main charge is to assess the fairness of the PEB’s determinations that these conditions were not unfitting.  Although the knee condition was incorporated in the L3 profile, it would be overly speculative to conclude that it would have resulted in a level 3 profile independent of the LLE neuropathy; and, the remaining conditions resulted only in level 2 profiles with no unfitting implications as above.  All of the conditions were judged to meet retention standards and none were implicated by the commander.  There was no convincing performance-based evidence from the record that any of them significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determinations for the right knee condition, hearing loss, and reactive airway disease; so, no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the left lower extremity shrapnel injury, the panel recommends a disability rating of 10%, coded 8523 IAW VASRD §4.124a.  In the matter of the contended post-traumatic stress disorder, right knee pain, hearing loss, and reactive airway disease, the panel recommends no change from the PEB determinations as not unfitting.  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, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Shrapnel Injury with Neuropathy, Left Lower Leg 	8523	10%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20170331, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Record  

AR20190005951, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified to but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, Disabled American Veterans (DAV), VA Regional Office, Room 1575B, JFK Federal Building, Government Center, Boston, MA 02203.

Sincerely,					      
Enclosure