RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201222 SEPARATION DATE: 20020621 BOARD DATE: 20130313 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (19K/Armor Crewman), medically separated for multiple stress fractures of the bilateral lower extremities. Within months of entering the service the CI had complaints of ankle pain and multiple stress fractures were suspected and confirmed by bone scan. The bilateral knee and ankle pain could not be adequately rehabilitated in order 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 no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the chronic knee and ankle pain due to multiple stress fractures as a single unfitting condition, 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: “Legs still constantly hurting, still get stress fractures also shin splints, also knee problems (pain and swelling).” 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. 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 IPEB – Dated 20020517 VA (STR Used) – All Effective Date 20020622 Condition Code Rating Condition Code Rating Exam Chronic Knee and Ankle Pain / Multiple Stress Fractures 5099-5003 0% Multiple Stress Fractures of Bilateral Lower Extremities 5299-5010 10% STR .No Additional MEB/PEB Entries. 0% X 0 / Not Service-Connected x 0 Rating: 0% Rating: 10% *Effective 30 June 2006, the VA rated each lower extremity at 10% for a combined 20% rating. ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-aggravated 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). The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. Multiple Stress Fractures of the Bilateral Extremities. The PEB combined bilateral knee and ankle pain as the single unfitting and solely rated condition, coded analogously to 5003. Although this approach complies with AR 635.40 (B.24 f.), this approach by the PEB, not uncommonly, 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. First, the Board must satisfy the requirement that each unbundled condition was unfitting in and of itself and apply separate codes and ratings in its recommendations if each condition is separately 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. Soon after beginning basic training, the CI complained of bilateral lower extremity pain. A bone scan in March 2002 noted the presence of stress fractures of the bilateral tibial plateaus and diaphyses. At an outpatient evaluation on 8 April 2002 the CI reported that shin pain had resolved, but that the knees and the left ankle were worsening despite adhering to an activity limiting profile. Examination noted a normal gait. The narrative summary (NARSUM) evaluation on 29 April 2002 (2 months prior to separation) reported bilateral knee and ankle pain that worsened with walking. Anti-inflammatory medication was not helpful for pain. Examination revealed knee range-of-motion (ROM) of 0-140 degrees bilaterally (normal 0-140 degrees) and tenderness over the medial tibial plateaus and left medial distal tibia. There was no redness or swelling. Ankles showed full active ROM with tenderness below the medial malleolus. Ankle swelling and redness was absent. A follow-up bone scan on 7 August 2003 (13 months after separation) showed resolution of the previously identified stress fracture abnormalities. The Board directs attention to its rating recommendation based on the above evidence. The PEB’s DA Form 199 reflected application of the VASRD analogous 5003 code for rating bilateral knee and ankle pain together at 0%. The VA, based on the service treatment record (STR), also assigned a single rating for the bilateral condition, at 10%, under an analogous 5010 code. Board members agreed that clinical and radiographic evidence did not support the inclusion of ankle pain as unfitting, separate from the tibial plateau/diaphyseal stress fractures; but also agreed that it would be overly speculative to conclude that either lower extremity was not itself independently unfitting. The Board considered that there was no compensable limitation of motion and no radiographic evidence of degenerative changes, but debated whether a normal gait, generally unremarkable physical examination findings and subsequent resolution of radiographic evidence of stress fractures depicted a sufficiently severe objective functional impairment to warrant application of §4.40 or §4.59. The Board also carefully considered the option of rating both lower extremities together, noting that the VA declined to rate each extremity separately. 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 (Resolution of reasonable doubt), the Board recommends a disability rating of 10% for the bilateral lower extremity 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 chronic knee and ankle pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic knee and ankle pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. 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 Chronic Knee and Ankle Pain Due to Multiple Stress Fractures 5099-5003 10% RATING 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120611, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130007857 (PD201201222) 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 xxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)