RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301637
BRANCH OF SERVICE:  Army	BOARD DATE:  20140508
SEPARATION DATE:  20090409

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92F/Petroleum Supply Specialist) medically separated for bilateral leg pain (bilateral anterior compartment syndrome).  The CI first reported bilateral leg pain in early 2005.  He was initially diagnosed with shin splints and was profiled which allowed him to continue his duties.  He deployed to Iraq from September 2005 to August 2006.  He reported that his pain continued and increased throughout the duration of his deployment.  He completed his deployment and continued treatment with the same diagnosis.  He was then deployed to Afghanistan in January 2008.  His pain increased and a physician in-theater felt he had compartment syndrome.  He was medically evacuated to the CONUS where he was evaluated by orthopedics.  He underwent a surgical procedure, but his condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The bilateral leg condition, characterized as “bilateral leg pain” and “neuropraxia of branch of right superficial peroneal nerve” (both medically unacceptable) were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (all medically acceptable) for PEB adjudication.  The Informal PEB adjudicated “bilateral anterior compartment syndrome” as unfitting and rated it at 20%.  The remaining conditions were 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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20090217	VA - (3 Mos.  Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Anterior Compartment Syndrome	5399-5312	20%	Bilateral Compartment Syndrome	Not Service Connected	20090105	
No Additional MEB/PEB Entries	Anxiety and Depression	VASRD Code Not Available	30%	20090430	
	Other x 6	20090105	
Combined:  20%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20090611 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The PEB bundled the right and left leg conditions from the MEB and rated as a single entity.  The Board’s initial charge in this case was, therefore, directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW applicable VASRD sections.  If the Board judges that separate ratings are warranted in such cases, however, it must satisfy the reasonable requirement that each “unbundled” condition was unfitting in and of itself or at least an indispensable element of a combined effect rating.  As the leg conditions were evaluated together on all examinations, the Board will discuss the clinical conditions together and then address the rating decisions separately.

Bilateral Anterior Compartment Syndrome Condition.  The CI developed exercise induced compartment syndrome condition in both legs (painful swelling of the calf muscles with exercise.)  This was confirmed with pressure measurements in two of the four areas (compartments) in each lower leg with exercise demonstrating the right leg to be the worse.  A surgical treatment plan was undertaken to perform corrective surgery, fasciotomy, sequentially on both legs beginning with the right.  Fasciotomy of the right leg was performed on 19 September 2008, 7 months before separation.  During this procedure the nerve in the area of surgery which provided motor and sensory innervation to the lower leg and foot (superficial peroneal nerve) was identified and preserved.  Postoperatively the CI developed some numbness in the foot.  This improved and the CI noted he would “probably have the left side operated on in the near future.”  In early October, the CI developed increasing right leg pain and numbness.  A small (not infected) fluid collection was drained by aspiration, but pain with exercise and numbness persisted.  On occupational therapy clinic visit on 29 October 2008, the CI reported constant bilateral leg pain but was able to “perform all usual tasks without difficulty and in a routine matter.”  He was planning to go to college and pursue a career in fire sciences.  In the 8-month period prior to the MEB/narrative summary (NARSUM) evaluation below, the CI was seen in the clinics on 14 occasions, reporting right leg pain alone on 5 occasions, left leg pain alone on no occasions, pain in both legs on 6 occasions and no leg pain on 3 occasions.  On an orthopedic clinic visit on 20 November 2008, 5 months before separation, the CI elected not to have surgery on his left leg.  At the VA Compensation and Pension (C&P) examination on 5 January 2009 (3 months before separation), the CI reported bilateral leg pain with running and climbing stairs.  Symptoms were alleviated by medication, rest and stretching, but no other limitations were noted.  On examination, gait was normal.  The right leg surgical incision was healed and the legs were not swollen.  Range-of-motion (ROM) and motor strength were normal.  Sensation was decreased over the top of the outside foot.  All other joints were reported to have full ROM and normal strength.  On clinic evaluation on 15 January 2009 (3 month before separation), the CI was attending full-time school.  At the NARSUM/MEB exam on 3 February 2009 (2 months before separation), the CI reported constant numbness in the lower mid right leg extending to the top of the outside foot and lateral three toes.  He noted constant pain in both legs with varying degrees of intensity, but was taking no medication for pain.  On examination, gait was normal; calf muscles were not swollen but were painful to compression.  The surgical scar was well healed.  Light-touch sensation in the surgical scar and over the lateral ankle and foot was reported as decreased.

The Board directs attention to its rating recommendation based on the above evidence.  As noted in the analysis summary, the PEB combined both leg conditions and rated it at 20% analogous to code 5312, Group XII muscle dysfunction, moderately severe, IAW §4.73 (Schedule of Rating-Muscle Injuries).  A higher rating of 30% under this code requires the condition to be “severe.”  The VA adjudged the bilateral leg condition to be not service-connected and did not rate it.  A subsequent VARD on 5 October 2011 rated the right and left leg condition at 10% each for a combined rating of 20%.

The Board then undertook a rating of the right leg condition.  The Board agreed that record reasonably supported the right leg conditions to be unfitting.  The Board agreed the right leg condition was moderate in its severity and rose only to the level of 10% under code 5312 IAW §4.73 or 10% for painful motion IAW §4.59 (painful motion).  The Board agreed that the right leg condition was not ratable under range of motion IAW §4.71a.  The Board undertook to determine if rating under code 8522 superficial peroneal nerve neuralgia, IAW §4.124, was achievable.  The Board unanimously agreed that there was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  The Board considered additional rating for the right leg IAW §4.118 (schedule of rating-skin) under code 7804 for painful scar, but concluded it could not as the scar was neither unstable nor painful.  The Board found no pathway to a rating higher than 10% for the right leg condition.

The Board then under took a rating of the painful left leg condition.  The Board agreed that the record reasonably supported the left leg condition to be unfitting.  The Board agreed the leg condition was slight in its severity and rose only to the level of 0% under code 5312 IAW §4.73 or 10% for painful motion IAW §4.59.  The Board concurred that the left leg condition was not ratable under range of motion IAW §4.71a.  The Board found no pathway to a rating higher than 10% for the left leg condition.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right leg condition and 10% for the left leg condition IAW §4.59.  However, as this provides no benefit to the CI, the Board, under precedent, recommends no change in the PEB adjudication for the bilateral leg condition.
 
Contended PEB Conditions:  The Board’s main charge is to review the record and assess whether any MH condition was unfitting and should be considered for disability rating.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board noted the NARSUM, MEB and PEB documents to contain no MH inclusions.  The Board agreed that this applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The service treatment records contain few MH entries.  On clinic visit for insomnia on 18 August 2007, a history of anxiety and depression was noted.  The CI was taking psychotropic medication at that time.  On post-deployment health assessment on 4 September 2008 on return from Iraq/Afghanistan deployment, the CI reported no MH symptoms or stresses.  No MH referral was ordered.  On MH assessment on 3 October 2008, the CI was determined to be at “low risk” for MH difficulties.  On several medical clinic visits, a past history of “depression with anxiety” was recorded.  At the VA C&P psychiatry exam, the month of separation, the CI reported some depression and anxiety in crowds, but offered that he had lost no work time due to MH symptoms.  Mental status examination was normal with exception of a depressed mood.  Psychiatric testing suggested: depression of mild/moderate severity; anxiety of moderate severity and no posttraumatic stress disorder (PTSD).  The examiner assigned an Axis I diagnosis of anxiety disorder and a Global Assessment of Function (GAF) of 60. (GAF: 60–51…Moderate symptoms or moderate difficulty in social, occupational, or school functioning in social, occupational, or school functioning).  The VA rated anxiety and depression 30% on VARD of 11 June 2009, 2 months after separation based on this examination.  No MH disorder was mentioned in the commander’s statement, was profiled or was judged to fail retention standards.  There is no evidence of emergency room treatment, unscheduled clinic visits or hospitalizations for any MH condition.  The Board noted the notations of a past history of depression in the record, but agreed that there was no indication that any MH condition significantly interfered with satisfactory duty performance.  The Board found no documented Diagnostic and Statistical Manual of Mental Disorders-IV TR criteria to support a diagnosis of any MH condition, including PTSD.  The Board agreed the preponderance of evidence in record did not support an unfitting determination for any MH condition at the time of separation and that VASRD §4.130 and §4.129 were not applicable in this case.  After due deliberation in consideration of the preponderance of the evidence, the Board unanimously agreed that there was insufficient cause to recommend an unfitting status for any MH condition; thus, no additional disability ratings are 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the bilateral leg pain condition and IAW VASRD §4.73, the Board unanimously recommends no change in the PEB adjudication.  In the matter of any contended MH condition, the Board unanimously agreed that it cannot recommend additional disability rating.  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	
Bilateral  Anterior Compartment Syndrome	5399-5312	20%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130511, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20140014463 (PD201301637)

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)