Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  		BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1200741	SEPARATION DATE:  20030619
BOARD DATE:  20130529

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A/Logistics) medically separated for bilateral leg pain.  The CI complained of this bilateral leg pain since initial training in 1998, but despite therapy and surgical intervention the CI could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty (MOS) or physical fitness standards.  She was consequently issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The leg condition, characterized as “Chronic bilateral leg pain secondary to chronic bilateral tibial stress fractures” and “S/P right tibial stress fracture malunion correction,” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501 with no other conditions submitted.  The PEB adjudicated “Chronic bilateral leg pain secondary to chronic tibial stress fractures, rated as slight/frequent” as unfitting and rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The second MEB diagnosis (status post [s/p] right tibial stress fracture…) was deemed to be not unfitting by the PEB.  The CI made no appeals and was medically separated.

CI CONTENTION:  The application states “The rating should be changed because my disability has worsen.  I have developed degenerative joint disease, along with bone spurs and need a total knee replacement.”  The application does not elaborate or specify a request for Board consideration of any additional conditions.

SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (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 Board acknowledges the sentiment expressed in the CI’s application, i.e., that there should be additional disability assigned for conditions which will predictably worsen over time.  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 Board utilizes DVA evidence proximal to separation in arriving at its recommendations; 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.  The rating for the unfitting bilateral leg pain, including knees, is addressed below.  The rating for the right tibial stress fracture is also addressed below.  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 Board for the Correction of Military Records.

RATING COMPARISON:

Service PEB – Dated 20030416 | VA (~5 Mo. Pre-Separation) – Effective 20030620
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic bilateral leg pain | 5099-5003 | 10% | S/P Left tibia stress fracture* | 5299-5262 | 10% | 20030106
S/P R tibial stress fracture malunion correction | Not Unfitting | Right tibial stress fracture s/p surgery for malunion | 5262 | 10% | 20030106
↓No Additional MEB/PEB Entries↓ | Not Service Connected x 4 |
Combined:  10% | Combined:  20%
*Initial rating of 0% for left tibia stress fracture increased to 10% based upon appeal by CI and records review by VA

ANALYSIS SUMMARY: 

Chronic Bilateral Leg Pain Secondary to Chronic Bilateral Tibial Stress Fractures Condition.  The CI developed bilateral leg pain during basic training in September 1998.  A bone scan diagnosed a right tibial shaft stress fracture and she was treated with protected weight bearing.  She then developed symptoms in the left proximal tibia while continuing to have right tibial pain.  She had a repeat bone scan performed which revealed a diagnosis of bilateral tibial stress fractures.  She was treated conservatively but subsequently was diagnosed with a malunion of the right proximal tibial stress fracture.  She underwent right tibial surgical corticotomy with placement of a Taylor spatial frame (external fixation) with progressive correction of her deformity over the next several months.  She was maintained in this external fixator through November of 1999 and was treated with progressive weight bearing and physical therapy with improvement of the mal-alignment of her right tibia.  She continued to have pain in her leg despite duty restrictions.  On 2 December 2002, the CI was issued a permanent L3 profile with restrictions of no running for bilateral tibial stress fractures.  On 31 March 2003 her commander’s statement noted she was incapable of performing her duties and she could not lift over 30 pounds nor participate in physical training with her unit.  At the narrative summary (NARSUM), 16 months prior to separation, the CI noted difficulty lifting anything more than 40 pounds and that prolonged sitting caused “pain in her proximal tibia which feels like a stretching.”  The examiner noted a slight decrease in flexion of 10 degrees for each knee, but without instability or signs of meniscal irritation or DeLuca criteria.  The right knee was tender over the corticotomy site and the left along the lateral compartment.  The examination was otherwise unremarkable.  The ankle range-of-motion (ROM) was of 30 degrees dorsiflexion in each ankle (normal 20 degrees) and plantar flexion was 50 degrees (normal 45 degrees) on the right and 55 degrees on the left.  She had full talar and subtalar joint motion on each side without instability, effusion, locking, or DeLuca criteria.  At the VA Compensation and Pension examination, 5 months prior to separation, the CI noted constant pain in the right shin area at the pin sites, that she could not run and reported difficulty walking.  The VA examiner noted “Tibia and fibula: left - normal exam without tenderness.  No swelling.” and “right - normal examination without tenderness or swelling.”  The VA examiner also documented “Ankles: The general appearance of bilateral ankle joints within normal limits.  ROM bilateral ankles dorsiflexion 20, plantar flexion 45, not additionally limited by pain, fatigue, weakness, lack of endurance and incoordination.”  In their analysis of rating, the VA noted she had “no separate, medically diagnosed knee injury or disease subject to Service connection.”  The VA examiner cited essentially normal knee motion and function and that an X-ray was within normal limits, but stated “This lady should function at the sedentary level only.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the left and right chronic bilateral leg pain conditions under a single disability rating, and coded analogously to 5099-5003.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for a rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (Higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the chronic left and chronic right leg pain conditions are presented separately with attendant recommendations regarding separate unfitness and separate ratings if indicated.  The Board first considered if the chronic left leg pain condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above.  The Board noted that the commander’s letter did not specify that the right or left leg was any more limiting than the other to her MOS.  The Board found that her profile specified bilateral tibial stress fractures without preference to one side or the other.  The Board noted the multiple references to bilateral pain in the NARSUM and the results of a bone scan 16 October 2002 (4 years after injury) reviewed in the NARSUM as “increased uptake at the proximal tibia bilaterally on the right at the site of the corticotomy, on the left at the site of the bony hypertrophy.  These are consistent with mild active stress fractures.”  With the application of VASRD §4.3, the Board opined that it was reasonable to find the left leg pain condition separately unfitting and, therefore, individually ratable under the VASRD.  Next the Board first considered if chronic right leg pain condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above.  In the same fashion, members agreed that the functional limitations in evidence justified the conclusion that the right leg pain condition was integral to the CI’s inability to perform her MOS rating so a separate rating is recommended.  The Board next turned to coding and rating options.  The PEB coded chronic bilateral leg pain analogously 5099-5003 and rated 10%, citing the USA pain policy.  The VA used the VASRD requirement for bilateral conditions and coded the left tibia stress fracture analogously as 5299-5262 under tibia and fibula and rated for slight knee or ankle disability for 10% (initially 0%, but later raised to 10%, retroactive to separation, upon appeal).  The VA also rated right tibial stress fracture status post-surgery for malunion and coded 5262 under tibia and fibula, with slight knee or ankle disability at 10%.  The Board observed that the analogous code 5299-5262 is the recommended coding option in the VASRD for tibial stress fractures (shin splints.)  The Board noted that the CI’s condition that led to severance was pain in both legs, especially while weight bearing, and that both the NARSUM and VA exams found no ratable disability or painful motion in either the knees or ankles.  The Board assigned higher probative value to the VA exam due to its closer proximity to the date of separation and documented detail, but recognized that the PEB NARSUM was dictated by the treating orthopedic surgeon and that the bilateral stress fracture conditions had been present and stable for several years at the time of the dictation.  The Board considered other coding options, but none provided either a better clinical description or a route to advantage the CI relative to the code of 5299-5262 at 10% for each knee.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 10% each for the left and right leg pain conditions coded analogously to 5299-5262.

Contended PEB Conditions.  The other condition forwarded by the MEB and adjudicated as not unfitting by the PEB was the right tibial stress fracture malunion correction condition.  The Board opined that the malunion correction condition and any corresponding symptoms were prima facie related to the right tibial stress fracture, and that attendant pain from both could not be separated.  The Board concluded that the disability from the right tibial stress fracture malunion correction condition was subsumed under the unfitting right tibial stress reaction and not separately unfitting.  Regardless, even if determined to be separately unfitting, it could not be rated separately without pyramiding, which is precluded by VASRD §4.14 (Avoidance of pyramiding).  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the right tibial stress fracture malunion correction condition; therefore, no additional disability rating can be recommended.

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 bilateral leg pain condition was operant in this case and it was adjudicated independently of that policy by the Board.  In the matter of the chronic bilateral leg pain condition, the Board unanimously recommends a disability rating of 10% for the left leg pain condition coded 5299-5262 and 10% for the right leg pain condition coded 5299-5262, IAW VASRD §4.71a.  In the matter of the right tibial stress fracture malunion correction condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective the date of medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Left Leg Pain Condition | 5299-5262 | 10%
Right Leg Pain Condition | 5299-5262 | 10%
COMBINED (w/ BLF) | 20%

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.

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130014772 (PD201200741)

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 20% 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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1200741