RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03277
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20061208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an  active duty E5, Cannon Crewmember, medically separated for “bilateral lower extremity compartment syndrome” and “bilateral hearing loss,” rated 0% each, with a combined disability rating of 0%.  

CI CONTENTION:  No specific contention was made.  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 - 20061117	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Lower Extremity Compartment Syndrome 	5399-5312-8723	0%	No VA Examination in Evidence 	
Bilateral Hearing Loss	6100	0%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Bilateral Lower Extremity Compartment Syndrome.  The PEB combined the left and right lower extremity compartment syndromes with superficial peroneal neuritis of the right lower extremity (RLE) under a single disability rating coded 5399-5312-8723 (muscle injury group 12-incomplete paralysis of the deep peroneal nerve), an analogous code for compartment syndrome, and rated 0%.  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 and MEB narrative summary (NARSUM), the CI underwent bilateral anterior and lateral fasciotomies (cutting constrictive soft tissue to release muscle pressure) on 24 April 2006.  An orthopedic follow-up visit in June 2006 noted neuritic (nerve related) pain of the left lower extremity (LLE) emanating from the scar and radiating to the top of the foot, and continued RLE pain and both conditions were permanently profiled.  The commander’s statement, dated 15 August 2006, implicated the LLE and RLE compartment syndromes as impairing CI duty performance.

The 1 November 2006 MEB NARSUM examination, 1 month prior to separation, noted the LLE had continued to improve after surgery, but the RLE worsened.  There was intermittent pain of the LLE depending on activity, but the CI reported continuous shooting pain in the RLE and pain to light touch and decreased sensation.  On physical examination, the LLE showed pain in the deep calf and the anterolateral compartment with plantar flexion, with normal strength and sensation.  The RLE showed pain with foot dorsiflexion, plantar flexion, eversion and inversion, especially on the lateral aspect of the RLE with forced inversion.  There was pain over the incision of the right anterior and lateral compartment which sent pain to the top of the lateral foot.  There was deep pain on the right with standing on toes.  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 combined the right and left lower extremity conditions and under the analogous code 5399-5312-8723 and rated it 0% as elaborated above.  The panel first considered if the RLE and LLE conditions having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Both the RLE and LLE conditions were implicated by the profile and commander’s statement and were judged 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 RLE and LLE conditions were reasonably considered separately unfitting.  The panel then considered if the RLE compartment syndrome RLE neuritis were separately unfitting.  In this case the superficial peroneal neuritis was a complication of the right fasciotomy for the compartment syndrome and IAW with VASRD §4.56 a muscle rating and a peripheral nerve rating of the same body part may not be combined unless the injuries affect entirely different functions, which was not the case.  Therefore, regardless of fitness determination for the superficial peroneal neuritis, only a single rating may be recommended for the RLE conditions.  

The panel considered its rating recommendation for the unfitting RLE condition at the time of separation.  As noted above the RLE condition could be rated under a nerve code IAW VASRD §4.124a or alternatively under a muscle code IAW VASRD §4.73, but not both.  Rating as a nerve injury, the panel agreed the evidence supported a 10% rating for moderate incomplete paralysis of the superficial peroneal nerve.  The panel judged that without sensory loss or weakness of the RLE, the nerve injury could not be considered severe for a higher rating.  Alternatively, if rating as a muscle injury, there was evidence of calf tenderness and painful motion at the MEB NARSUM examination to support a 10% rating coded 5399-5312 for moderate muscle injury.  However, the panel judged it could not be characterized as a moderately severe injury, which would require more symptoms and greater objective evidence of abnormalities such as swelling, persistent muscle defects or weakness.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the RLE condition, coded 8622 (superficial peroneal neuritis).  

The panel next considered the rating of the unfitting LLE condition.  Following surgery the LLE improved to a greater extent than the RLE.  The MEB NARSUM examination noted intermittent LLE pain dependent on activity and the only abnormality noted on examination was pain with plantar flexion of the foot.  The panel majority judged this was best characterized as mild neuritis for a 0% rating, and no higher under 8622.  Similarly, if rating as a muscle injury under 5399-5312, the panel judged the muscle injury could be characterized as slight for 0% rating and no higher.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 0% for the LLE condition, coded 8622 (superficial peroneal neuritis).  

Bilateral Hearing Loss.  According to the STR, the CI underwent an audiology examination on 18 August 2006 where he reported being in a number of firefights during two deployments and in April 2003 was standing in front of a Howitzer when it fired, he was not wearing hearing protection.  An audiogram showed bilateral high frequency hearing loss.  The left ear showed puretone thresholds of 10 decibels (dB) at 1000 hertz (hz), 80 dB at 2000 hz, 85 dB at 3000 hz and 75 dB at 4000 hz with a left ear puretone threshold average of 62.5 dB.  The right ear showed puretone thresholds of 25 dB at 1000 hz, 20 dB at 2000 hz, 55 dB at 3000 hz and 80 dB at 4000 hz with a right ear puretone threshold average of 45 dB.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral hearing loss 0 %, coded 6100 (hearing impairment).  According to the procedures specified by VASRD §4.85 (evaluation of hearing impairment), the Roman numeral designation obtained from Table VIa “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average” was IV in the left ear and II in the right ear, which warrants a Table VII rating of 0% for hearing impairment.  After due deliberation, considering all 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 bilateral hearing loss.  

BOARD FINDINGS:  In the matter of the bilateral lower extremity condition, the panel majority recommends that each lower extremity be separately adjudicated as follows: an unfitting RLE compartment syndrome coded 8622 and rated 10%, and an unfitting LLE compartment syndrome, coded 8622, and rated 0% IAW VASRD §4.71a.  The single voter for dissent recommends each lower extremity be rated 10% each, but does not elect to submit a 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, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Lower Extremity Compartment Syndrome	8622	10%	
Left Lower Extremity Compartment Syndrome	8622	0%	
COMBINED	10%	

The following documentary evidence was considered:

AR20190002223, 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 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.

Enclosure