RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	 CASE:  PD-2013-02129  
BRANCH OF SERVICE:  Army	 BOARD DATE:  20150514  
SEPARATION DATE:  20050825  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-3 (Basic Trainee) medically separated for a bilateral lower extremity condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “multiple stress fractures bilateral lower limbs” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “pain both lower extremities and feet with clinical assessment of multiple stress fractures” as unfitting, rated 0%, with likely application of Army Regulation (AR) 635-40 (B-24).  The CI made no appeals and was medically separated.  

CI CONTENTION:  “I am currently compensated for 50% disabled, but I am 60% disabled.  I believe that I am more than 60% because I hurt more now and unable to do things I have requested to be re-evaluated, but am still waiting for an appointment to see a doctor.  Please see attached documents.”  [sic]

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.   

RATING COMPARISON:  

Service IPEB – Dated 20050803 | VA* - Original Exams Missing (see note below)
Condition | Code | Rating | Condition | Code | Rating
Pain Both Lower Extremities and Feet…Multiple Stress Fractures | 5099-5003 | 0% | Residuals, Stress Fracture, Left Foot | 5284 | 0%
| | | Residuals, Stress Fracture, Right Foot | 5284 | 0%
Other x 0  (Not in Scope) | Other x 4
RATING:  0% | RATING:  40%
*Derived from VA Rating Decision (VARD) dated 20120717; original VARD missing 

ANALYSIS SUMMARY:  As noted in the above rating chart, the original VARD and associated VA Compensation and Pension (C&P) examination were not available in evidence before the Board, nor were they obtainable after repeated request.  Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case.  Although the missing documents likely contain relevant evidence, members agreed that the available Service and VA evidence is sufficiently probative to render a fair assessment of the presence or absence of applicable VASRD rating criteria and functional limitations.  It is thus believed that the missing evidence did not materially affect the Board’s recommendations.  

Bilateral Lower Extremity Stress Fractures.  The earliest entry in the service treatment record (STR) for this condition was an emergency room visit in November 2004 (during the CI’s second week of basic training, and 9 months prior to separation), at which time she complained of atraumatic bilateral knee and lower extremity swelling.  Other than a next day clinic note, no subsequent STR entries identified knee complaints.  A stress fracture of the left talus (weight-bearing ankle bone) was diagnosed by bone scan soon afterwards; and, a series of physical therapy (PT) visits for bilateral ankle pain (predominantly left) ensued.  The CI improved, but upon resumption of training she experienced an onset of right ankle and foot pain; and, imaging revealed stress fractures of the right distal tibia (ankle joint) and ankle bones (cuneiforms with an osteochondral defect of the talus).  Subsequent STR entries leading up to MEB referral were directed predominantly at right ankle/foot pain; although, the left ankle/foot continued to be mentioned, and there was no directed comment that it had resolved.  There was evidence for significant gait and functional disturbance in earlier STR entries, with periodic use of crutches; but, all later entries (starting April 2005, 4 months prior to separation) documented a normal gait with no indication of the use of a brace or other assistive device.  These same entries documented grossly normal range-of-motion (ROM) and 5/5 strength.  There is no STR evidence for more significant ROM limitation, joint instability, or periods of incapacitation.  

The narrative summary (NARSUM) was conducted 13 July 2005 (a month prior to separation); and, documented the CI’s statement, "My right foot hurts when I try to run.  My left foot used to hurt when I tried to run, but it has gotten better."  Although specifying “pain in the leg below the knee,” the examiner did not elaborate pain severity or limitations.  The NARSUM physical examination recorded right foot and ankle tenderness (hindfoot, calcaneus, talus), without specifying left foot findings or commenting on gait.  Bilateral ankle ROM was visually assessed as dorsiflexion (DF) to 20 degrees (normal) and plantar flexion (PF) to 40 degrees (normal 45), without comment regarding painful motion.  Formal ROM measurements were provided for the MEB by PT, 5 days later.  This recorded right DF 10/PF 30 degrees and left DF 10/PF 40 degrees, with annotation of painful motion.  The commander’s performance statement did not differentiate left from right lower extremity limitations, and stated only, “The injuries prevent the Soldier from performing many physical exercises and activities.”  The permanent L3 profile was for “multiple stress fractures - bilateral lower limbs” and did not permit alternate aerobic activities.  As noted above, there was no temporally probative VA or other post-separation evidence available in this case.  

The Board directed attention to its recommendations based on the above evidence.  The PEB’s bilateral 0% rating (defining the unfitting condition as the stress fractures which were confined to the distal tibia and ankle) was under the analogous code 5003 (degenerative arthritis); and, does not comport with the VASRD §4.71a stipulation for a 10% rating under 5003 for “2 or more major joints,” the latter without regard to ROM limitation or other factors.  Although the Board cannot access the VARD rationale, the VA’s separate 0% ratings under 5284 (foot injuries, other) implies the judgment that the disability did not meet the “moderate” criterion for the minimum 10% rating under that code.  The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each Service disability rating.  In this case, it is clear that the right ankle/foot was the dominantly unfitting condition at the time of separation, although it must be considered that there was fairly equivalent pathology (with similar long term disability implications) on the left.  Furthermore, the MEB submission, PEB adjudication, commander’s statement, and profile specified a bilateral condition.  Members agreed, therefore, that the left ankle/foot was reasonably conceded as a significant factor in rendering the CI unfit.  Members did conclude; however, that it was speculative to presume that the disability confined to either extremity would have rendered the CI incapable of completing training and pursuing her assigned (administrative) MOS.  It was thus reasonable to surmise that it was the combined effect of both ankle/foot conditions which rendered her unfit.  

Having so decided, the Board turned to the appropriate rating recommendation for the bilateral condition; and, first considered if separate ratings for foot and ankle disability were defensible in this case.  In that regard, members agreed that no separately ratable impairment was discernable without violation of VASRD §4.14 (avoidance of pyramiding).  No specific foot codes under §4.71a, which are amendable to bilateral rating, are applicable to the case; and, separate ratings for ankle ROM limitation are precluded by the fitness considerations just elaborated.  Furthermore, the closest clinical fit for stress fractures (a break in the periosteum [outer shell] of the bone) is captured by code 5022 (periostitis) which defaults to 5003 criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the bilateral ankle/foot condition under code 5099-5022.  

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 AR 635-40 for rating was operant in this case, and it was adjudicated independently of that regulation by the Board.  In the matter of the bilateral ankle/foot condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5022 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 her prior medical separation:  

UNFITTING CONDITION | VASRD CODE | RATING
Bilateral Distal Tibia and Tarsal Stress Fractures | 5099-5022 | 10%

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20131023, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXX, AR20150012457 (PD201302129)

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						    XXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-02129