RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02228
BRANCH OF SERVICE:  Army	BOARD DATE:  20150416
SEPARATION DATE:  20090617

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Water Treatment Specialists) medically separated for bilateral shin splints.  The 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 refractory shin splints” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded nine other conditions (see rating chart below) for PEB adjudication.  The Informal PEB adjudicated the bilateral shin splints as unfitting citing application of §4.40 of the Veterans Affairs Schedule for Rating Disabilities (VASRD), rated 10% “bilaterally” indicating each shin was rated separately as unfitting, and combined at 20% under a single code.  The remaining conditions, with the exception of adjustment disorder were determined to be not unfitting; adjustment disorder is a condition not constituting a physical disability IAW DoDI 1332.38, Enclosure 5.  The remaining conditions, with the exception of adjustment disorder were determined to be not unfitting; adjustment disorder is a condition not constituting a physical disability IAW DoDI 1332 38, ENCL 5.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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/Naval 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 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:

IPEB – Dated 20090306 | VA* - (~1 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Bilateral Shin Splints… | 5099-5002 | 20% | Shin Splints Left | 5262 | 10% | 20090513
| | | Shin Splints Right | 5262 | 10% | 20090513
Mild Obstructive Sleep Apnea | Not Unfitting | Obstructive Sleep Apnea | 6847 | 50% | 20090513
Deviated Nasal Septum | Not Unfitting | Deviated Nasal Septum… | 6502 | 0% | 20090513
Allergies | Not Unfitting | Allergic Rhinitis | 6522 | 0% | 20090513
Enuresis | Not Unfitting | Enuresis | 7599-7542 | NSC | 20090513
Palpitations | Not Unfitting | No VA Placement
Knee Pain | Not Unfitting | Bursitis Left Knee | 5019-5260 | 0% | 20090513
Posttraumatic Stress Disorder | Not Unfitting | Posttraumatic Stress Disorder with Depression (Also Claimed as Adjustment Disorder with Anxiety; Dysthymic Disorder) | 9411 | 30% | 20090513
Dysthymic Disorder | Not Unfitting | | | |
Adjustment Disorder | Does Not Constitute a Physical Disability | | | |
Other x 0 (Not In Scope) | Other x 1
RATING:  20% | RATING:  70%
*Derived from VA Rating Decision (VARD) dated 20091009 (most proximate to date of separation [DOS]).
Note:  The VARD dated, 20090326, was for Vocational Rehabilitation; therefore, the VARD dated, 20091909 was used for the Rating Comparison.

ANALYSIS SUMMARY:

Bilateral Shin Splints Condition.  The narrative summary (NARSUM) examiner noted that the CI had a 2-year history of severe pain in both his shins after running that was diagnosed as shin splints.  Since he was unable to run due to increased pain, he was given a profile, and had remained on the profile for the 2 years leading up to the MEB.  The CI took anti-inflammatory and narcotic medication and participated in physical therapy, but noted little improvement; he noted pain with most activity relieved only by rest.  The CI was given a prescription for a wheelchair in an effort to completely rest his shin splints in order to improve his functional capacity.  He started using the wheelchair in August 2008 (2 months prior to NARSUM) and completed 6 week therapy course with noted improvement only while resting in the chair.  At the NARSUM dated 14 October 2008, the CI reported he was using the wheelchair approximately 50% of the time; he did not use it at home, but did use it when leaving home.  He noted his pain was 3/10 intensity at rest and increased to 8/10 with flare-ups.  Physical examination documented a muscular built with lower extremity strength of 5/5, and no evidence of atrophy.  He was able to heel and toe walk without pain or difficulty.  The examiner documented that bone scan performed in June 2006 showed bilateral shin splints and no stress fracture.  There were no radiographic evidence or imaging in the year prior to separation.  There was one documented range-of-motion (ROM) recording for the left knee only that recorded flexion of 120 degrees (NL-140), dated 22 December 2008.  The CI had reported left knee gives way and pain.

The VA Compensation and Pension (C&P) examination, a month prior to separation recorded absence of Deluca (no loss of motion with repetition due to fatigue, incoordination, or lack of endurance) and painful motion bilateral lower extremity.  Left knee ROM recorded flexion to 120 degrees; right knee ROM was not recorded.  The CI had a normal gait, and there was no evidence of locking, giving way, or instability in the lower extremity.  There was no indication that the CI had continued to require the use of a wheelchair, and it was noted that he did not use any ambulatory device.  The PEB and VA chose different coding options for the condition, but this did not bear on rating.  The PEB’s DA Form 199 indicates that each knee was rated separately for functional loss, citing application of VASRD §4.40 (functional loss) to achieve a minimal compensable rating, coded analogously 5099-5003.  The VARD reflects a minimum compensable rating for the left and right shin splints for painful motion, coded 5262 (Impairment of tibia and fibula).  The Board also considered all applicable coding options (5257, 5258, 5260, and 5262), but could find a pathway to a rating higher than a minimal compensable rating for each knee (or a combined 20% under the 5003 code).  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 bilateral shin splints condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the mild obstructive sleep apnea, deviated nasal septum, allergies, enuresis, knee pain, palpitations, adjustment disorder, posttraumatic stress disorder (PTSD) and dysthymic disorder were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board first considered the evidence for the not unfitting mental health (MH) conditions listed above.  Treatment records were not available for review; however, a psychiatric NARSUM dated 6 February 2009, 4 months prior to separation, documented the CI had two deployments and was seen in the restoration and resilience clinic periodically for depressive and anxiety symptoms.  He reportedly refused psychotropic medications and had brief engagement with a therapist.  His most recent exposure to MH was in the context of marital problems.  The CI noted he had anxiety attacks that began during his first deployment and was seen in the emergency room in September 2007 for symptoms of anxiety (2 years prior to separation).  His reported symptoms of PTSD included hypervigilance, avoidance behaviors (crowds and stores), and social isolation.  No specific deployment related trauma exposure was identified.  The mental status examination documented the CI’s report of a “sad and optimistic” mood and the examiner assessed his affect as full range and not congruent with his reported mood.  All other aspects of the examination were normal.  The examiner noted that the evaluation was limited by the CI’s reported history of anxiety and sadness, “yet he appeared jovial, amiable, and easy to engage.”  He denied that depressive or anxiety symptoms had affected his ability to perform his duties in the military and the examiner stated his PTSD symptoms had a relatively mild effect on his occupational functioning.  The examiner assessed PTSD, chronic without mention of stressor, and dysthymic disorder.  A Global Assessment of Functioning score of 68 (mild) was recorded.  The psychiatrist opined that the CI’s MH symptoms were not impairing for military service, and that he met retention criteria with regards to his diagnoses.  With the exception of the sleep apnea, none of the contended conditions were profiled.  The Board also observed that none of the contended conditions, including sleep apnea were implicated in the commander’s statement or judged to fail retention standards.  Although the sleep apnea was profiled (P2), there were no duty related restrictions recorded in the profile.  Additionally, there was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  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 any of the contended conditions and so 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 shin splints condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mild sleep apnea, deviated nasal septum, allergies, enuresis, adjustment disorder, palpitations, knee pain, PTSD and dysthymic conditions, 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 there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140516, 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 XXXXXXXXXXXXXXXXXXXX, AR20150014955 (PD201402228)

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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)

PD-2014-02228