RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200939 SEPARATION DATE: 20020422 BOARD DATE: 20130321 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard PV2/E-2 (77F/Petroleum Supply Specialist), medically separated for bilateral tibial stress fractures and stress fracture of right first metatarsal. The CI developed shin and foot pain and was evaluated during week seven of his basic training by orthopedics and podiatry. His stress fracture conditions did not respond to aggressive conservative therapy and he was unable to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded bilateral tibial stress fractures and right first metatarsal stress fracture as separate conditions. No other conditions were forwarded for Physical Evaluation Board (PEB) adjudication. The PEB combined the two conditions and adjudicated them as bilateral tibial stress fractures and stress fracture of right first metatarsal, unfitting, rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with a 0% disability rating. CI CONTENTION: “Starting to have problems with my legs & developing some arthritis.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The Army rated conditions bilateral tibial stress fractures and right first metatarsal stress fracture as requested (leg pain) for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview; and, is addressed below. No other condition was requested or meets the criteria prescribed in DoDI 6040.44. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service PEB – Dated 20020319 VA (VARD dated 20020423 – 5 Days Post-Separation) – All Effective Date 20020418 Condition Code Rating Condition Code Rating Exam Bilateral Tibial Stress Fractures and Stress Fracture Right First Metatarsal 5099-5003 0% Bilateral Tibial Stress Fractures and Stress Fracture Right First Metatarsal 5099-5010 10% STR .No Additional MEB/PEB Entries. Not Service-Connected x 1 Combined: 0% Combined: 10% ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). Bilateral Tibial Stress Fractures and Stress Fracture Right First Metatarsal. The PEB combined bilateral tibial and right first metatarsal stress fractures as the single unfitting and solely rated condition, coded analogously to 5003. Although this approach complies with AR 635.40 (B.24 f.), the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting; and, that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting. Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. The CI developed right foot pain in November 2001, confirmed by bone scan to be due to a stress fracture. Conservative treatment and activity modification resulted in slow improvement. The final podiatry note on 23 January 2002 assessed the condition as "healing." By this time however, the CI was also complaining of left knee pain with prolonged standing only which progressed over the next 2 weeks to bilateral knee pain. A repeat bone scan on 4 February 2002 suggested early stress fractures of both tibial plateaus. The narrative summary (NARSUM) on 28 February 2002 (2 months prior to separation) notes a history of bilateral knee pain, without locking, popping, giving way, or effusions. The exam of the knees noted tenderness at the medial tibial condyles extending to the medial tibial shafts. The exam was silent regarding foot tenderness. There were no findings of edema, inflammation, bruising, or effusion. There were no neurologic or vascular deficits in the distal legs or feet. The examiner noted “full active range of motion without pain.” The NARSUM cited X-rays of the left knee in January 2002 which showed a possible stress fracture in the condylar region of the distal left femur. A permanent profile dated 4 March 2002 stated: "Bilateral tibial stress fractures. Status post right 1st metatarsal stress fracture." The VA relied on Service treatment records in lieu of a VA Compensation and Pension (C&P) exam. The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 0% rating was based on an analogous 5003 code (degenerative arthritis) IAW USAPDA pain policy, while the VA assigned a 10% rating under an analogous 5010 code (traumatic arthritis). The Board first considered if the right first metatarsal stress fracture condition, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above. In analyzing the intrinsic impairment for appropriately coding and rating the right first metatarsal fracture condition, the Board is left with a questionable basis for arguing that it was indeed independently unfitting. The last podiatry note in evidence indicated the stress fracture was healing. Subsequent clinical notes focused exclusively on the tibia conditions, while the NARSUM examiner did not indicate foot symptoms were an ongoing issue. Finally, the language of the permanent profile (i.e. "status post") implied that the condition had passed. After due deliberation, the Board agreed that evidence does not support a conclusion that right first metatarsal stress fracture, as an isolated condition, would have rendered the CI incapable of continued service within his MOS; and, accordingly cannot recommend a separate rating for it. Next, the Board carefully considered the option of rating both tibial stress fractures together, noting that the VA also adopted this approach. A bilateral rating of 10%, coded 5099-5003, is a good analogy to both the pathology and disability. Since rating analogously defaults to 5003 rating criteria, without regard to confirmed radiographic findings, a 10% rating for two major joints is supported. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the bilateral tibial stress fracture condition, coded 5099-5003. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on the USAPDA pain policy for rating 5099-5003 was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral tibial stress fractures condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. In the matter of the right first metatarsal stress fracture condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional disability rating. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Bilateral Tibial Stress Fractures 5099-5003 10% Stress Fracture Right First Metatarsal Not Unfitting COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120603, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxx, AR20130008770 (PD201200939) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)