RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201149 SEPARATION DATE: 20021106 BOARD DATE: 20130314 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (63W/Wheel Vehicle Repairer) medically separated for bilateral leg pain. He developed the pain in 2001 after running, and was subsequently diagnosed with chronic bilateral tibial stress fractures. The conditions did not respond adequately to treatment 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 condition (as a bilateral diagnosis) was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “chronic leg pain due to bilateral tibial stress fractures” as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with that disability rating. CI CONTENTION: “I believe that my condition has worsened and should be rated higher. My pain has increased and its [sic] getting more and more difficult to walk or stand for prolonged periods of time.” SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting leg condition(s) is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 respective Board for Correction of Military Records. The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans’ Affairs, operating under a different set of laws. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. RATING COMPARISON: Service IPEB – Dated 20020816 VA (8 Mo. Pre-Separation) Condition Code Rating Condition Code Rating Exam Bilateral Tibial Stress Fractures 5099-5003 10% Bilateral Tibia Stress Reactions 5021 10% 20020319 Combined: 10% Combined: 10% Derived from VA Rating Decision (VARD) dated 20021112 (most proximate to date of separation [DOS]). ANALYSIS SUMMARY: Bilateral Tibial Stress Fracture Condition. The first treatment note for the condition was May 2001 noting bilateral lower leg pain (right > left). Later notes document a diagnosis of shin splints, aggravated by prolonged weight bearing activities. This was managed with anti- inflammatory medications and temporary profile. Bone scans confirmed a diagnosis of bilateral tibial stress fractures, the orthopedic consultant recommended weight reduction and continued conservative management. The CI’s pain persisted, and a MEB was initiated. The permanent L3 profile specified “chronic bilateral leg pain.” The narrative summary (NARSUM) noted pain rated 8/10, precipitated by walking greater than 50 feet and aggravated by lifting. The physical exam noted bilateral pre-tibial tenderness and nodularity, with no positive knee or ankle findings. The VA prior to separation VA Compensation and Pension (C&P) evaluation was performed the same day as the NARSUM exam. Similar pain characteristics and physical limitations were documented. Physical findings were also equivalent, and a normal gait was documented. The commander’s statement did not specify the diagnosis, but noted similar physical limitations; and, noted that the CI was flagged for being “62 pounds over his allowable weight.” The Board directs attention to its rating recommendations based on the above evidence. IAW VASRD §4.7 (higher of two evaluations), the Board must consider separate ratings for PEB bilateral orthopedic adjudications; although, separate fitness assessments must justify each disability rating. In this case, there was no evidence separating the clinical features or attendant disability for either lower extremity. Members agreed that there was no performance based criteria in evidence which would support a conclusion that either extremity, in isolation, was reasonably justified as separately unfitting; and, therefore, the PEB’s fitness determination was likely grounded in the principle of overall effect. Furthermore, the bilateral diagnosis supported a single 5003 rating for “2 or more major joints” (as also applied by the VA); and, IAW VASRD §4.71a, no specific joint or extremity code is applicable outside 5003 based rating. Members thus agreed that separate disability ratings for right and left leg conditions could not be supported. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the bilateral tibial stress fracture condition. 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 bilateral tibial stress fractures was operant in this case and it was adjudicated independently of that policy by the Board. In the matter of the bilateral tibial stress fracture condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Chronic Leg Pain Secondary to Bilateral Tibial Stress Fractures 5099-5003 10% COMBINED (w/ BLF) 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120612 w/atchs. Exhibit B. Service Treatment Record. Exhibit C. Department of Veterans’ Affairs Treatment Record. xxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202- 3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxx, AR20130006160 (PD201201149) 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 and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)