RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD1201297
BRANCH OF SERVICE:  Army	BOARD DATE:  20130822
SEPARATION DATE:  20030430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92A/Automated Logistics Specialist) medically separated for a chronic low back pain (LBP) and shin splints.  The CI injured his back in March 2002 while exercising and exacerbated the injury 2 months later while lifting supplies.  Despite conservative treatment the pain continued and it became difficult for him to sleep due to pain.  The condition could not be adequately rehabilitated 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 “chronic LBP, chronic shin splints, as well as history of stress fracture of the left distal fibula” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic low back pain (LBP) and shin splints” as unfitting, rated 10%, with probable application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining stress fracture of the left distal fibula was determined to be not unfitting.  The CI made no appeals, and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 LBP and shin splints condition 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 Board for Correction of Military Records.

RATING COMPARISON:

Service  IPEB – Dated 20030224	VA - (3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP and Shin Splints	5099-5003	10%	Lumbar Spondylosis, DJD, Chronic Lumbar Strain	5010-5239	20%	20030107	
			Shin Splints, R/Leg	5299-5262	0%	20030107	
			L/Leg, Shin Splints and Stress Fx	5299-5262	0%	20030107	
No Additional MEB/PEB Entries	Other VA SC conditions x 3	20030107	
Combined:  10%	Combined:  40%	
VA Rating Decision (VARD) dated 20100614 used to determine original rating.

ANALYSIS SUMMARY:  The PEB combined the LBP and shin splints as a single unfitting condition, coded analogously to degenerative arthritis, and rated 0%.  The PEB may have relied on AR 635.40 (B.24 f.) and/or the USAPDA pain policy for not applying separately compensable Veterans Affairs Schedule for Rating Disabilities (VASRD) codes.  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 rather than 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 VA rated these conditions separately and adjudicated 20% for the back condition and 0% each for the shin splint conditions.  Numerous attempts to obtain the initial rating decision were unsuccessful including requesting it directly from the CI.  However, the VA examination was available for review and the Board determined that the case could be adjudicated without the VARD proximate to separation.

Low Back Pain Condition.  The CI first presented with LBP in June 2002 after lifting a heavy object at work.  He was treated conservatively with quarters, physical therapy (PT), and medications.  He continued to report LBP with increased activity over the next few months.  Plain X-rays showed mild degenerative changes.  X-rays of the sacroiliac spine and a magnetic resonance imaging (MRI) of the lumbar spine were normal.  As he was unable to meet the requirements of his MOS, he was referred to MEB.  The narrative summary (NARSUM) was dictated just over 4 months prior to separation.  The CI had full active range-of-motion (ROM) of the back in all planes of motion.  He was tender to palpation at the lumbosacral junction in a band.  There was no spasm and provocative testing of the lumbar back, sacroiliac joints, and discs was negative.  The gait and neurological examinations were normal.  At the VA Compensation and Pension (C&P) exam performed 3 months prior to separation, the CI reported continued pain, but did not report an injury which would explain the deterioration between the two examinations.  On the general examination, he was noted to be 68 inches tall and 210 pounds, a 30 pound gain over the prior 6 months, but this within a few pounds of his weight at enlistment.  At the orthopedic examination, he reported that he had injections and pain medications as well as PT.  The pain was aggravated by prolonged standing, walking, bending, stooping, and lifting heavy weight.  He was observed to walk slowly on examination, but was able to dress and undress without difficulty.  He had mild spasm in the lumbosacral area.  A straight leg raise was positive bilaterally.  He had some difficulty getting on the examination table.  His motor function was 4/5 in the lower extremities.  No comment was made on atrophy.  The reflexes were normal.  ROM is below.  The 2010 C&P examination is well outside the normal 12 months utilized for information of high probative value.  Nonetheless, it was reviewed as there was a marked difference between the MEB and initial C&P examinations which cannot be explained by the history documented in the record.  The CI reported that he could accomplish the activities of daily living and drive short distances, but had not worked for 2 years due to his LBP.  He was using a back support and cane; gait was antalgic.  The ROM was reduced in all planes with 65 degrees of flexion and a combined ROM of 150 degrees.  The neurological examination was normal.  There was no scoliosis.  Provocative testing for disc irritation was negative.  The examiner noted that the signs of non-organic pain were very positive.  DeLuca criteria were negative.  An MRI performed in 2009 showed bilateral facer arthropathy of L4-5 and L5-S1 without disc extrusion.  An X-ray of the lumbar spine in 2005 was noted as negative.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~ 4 Mo. Pre-Sep
	VA C&P ~ 3 Mo. Pre-Sep
	
Flexion (90 Normal)	Full	70	
Combined (240)	Full	140	
Comment	Paravertebral tenderness; normal examination otherwise	No history of trauma to explain the worsening of the examination or weakness	
§4.71a Rating	0%	10%	

The Board first considered if the LBP was a separately unfitting condition.  It noted that the CI had degenerative changes on X-ray (although an X-ray 2 years after separation was reportedly normal), tenderness on the MEB examination, and weakness with decreased ROM on the C&P examination.  The Board found the information sufficient to determine the LBP to be separately unfitting.  

The Board directs attention to its rating recommendation based on the above evidence.  The Board considered the marked difference between the MEB and initial C&P examinations for which no explanation was found in the medical records.  It noted that the CI had 4/5 weakness in both lower extremities on the C&P examination, even though it had been normal a month earlier and was also normal on the VA examination 7 years after separation.  The latter VA examiner also noted that signs of non-organic pain behavior were strongly present.  After careful consideration of the evidence, the Board assigned a higher probative value to the PEB examination and utilized it for its rating recommendation.  The Board noted that while there was an X-ray showing degenerative changes, the ROM was normal as was the neurological examination and gait.  Painful motion was not documented.  The Board did observe that the VA awarded 20%, coded 5010 (traumatic arthritis) and 5239 (spondylolisthesis).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board determined a disability rating of 0% for the LBP condition coded 5099-5003 was appropriate.  However, as the Board cannot recommend a rating lower than that awarded by the PEB and, as discussed below, the shin splints were not separately unfitting, the Board, 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 for the back pain condition.

Shin Splints Condition.  The CI was first seen for left shin splints in May 2001 and subsequently found to have stress fracture of the left fibula.  He was seen in orthopedics and noted to be non-compliant with his care and to have pain disproportionate to his level of injury.  In early 2002, he was noted to have bilateral anterior tibial pain and was diagnosed with bilateral shin splints.  A bone scan performed on 12 March 2002 was suggestive for both the bilateral shin splints and the stress fracture.  There were no further entries specific for either condition until the MEB NARSUM which was dictated 19 December 2002, almost 9 months later.  The NARSUM noted that the CI no longer had pain from either condition.  His gait was normal and there was no tenderness of either lower extremity to palpation.  At the C&P examination performed 3 months prior to separation, the CI reported pain in both legs whenever he tried to walk or run long distances.  There was no localized tenderness, swelling, or deformity in either leg.

The Board first considered if the bilateral shin splints (and healed fibular stress fracture) were separately unfitting conditions.  It noted that the CI had no symptoms on the more probative MEB examination and that there was no tenderness on either the MEB or C&P examinations.  Both the shin splint and stress fracture conditions are typically self-limited and heal completely over time once removed from the inciting, stressful environment (overuse).  This appears to have been the case here.  Accordingly, there was no longer an active diagnosis at the time of separation to justify an additional unfitting finding.  The Board concluded therefore that the shin splint condition could not be recommended for additional disability rating.

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 the LBP and bilateral shin splints was operant in this case and the condition was adjudicated independently of that policy by the Board.  The Board noted that while the LBP was determined to be separately unfitting, the 0% rating provided no advantage to the CI and is lower that the PEB adjudication.  Therefore, in the matter of the back and bilateral shin splint conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.

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 Low Back Pain and Shin Splints	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120830, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / XXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20130021908 (PD201201297)

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						     XXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)