RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200913 SEPARATION DATE: 20020418
BOARD DATE: 20121219
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty PFC/E‐4 (91B/Medical Specialist), medically separated
for chronic pain, due to bilateral lower extremity stress fractures. This condition was first noted
in January 2001 while the CI was in training. Pain associated with this condition could not be
adequately controlled or rehabilitated with repeated attempts at conservative treatment.
Therefore, the CI was unable to meet the physical requirements of her Military Occupational
Specialty or to satisfy physical fitness standards. She was issued a permanent L3 profile and
referred for a Medical Evaluation Board (MEB). Mild scoliosis and osteopenia as, identified in
the rating chart below, were also identified and forwarded by the MEB as existing prior to
service. The Physical Evaluation Board (PEB) adjudicated the chronic pain, due to bilateral
lower extremity stress fractures condition as unfitting, rated 10%, with application of the US
Army Physical Disability Agency (USAPDA) pain policy. The remaining condition(s) were
determined to be not unfitting. The CI made no appeals, and was medically separated with a
10% disability rating.
CI CONTENTION: “Because the condition continues to become worse and has caused more
injuries including a broken foot & Bone Spurs in neck and spine which will continue to become
even worse. The condition has become very debilitating at times and has caused job loss
because of further injuries.”
SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in 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 ratings
for unfitting conditions will be reviewed in all cases. The unfitting bilateral stress fractures and
the contended not unfitting mild scoliosis and osteopenia are within the Board’s scope of
review. 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 Army Board
for Correction of Military Records.
RATING COMPARISON:
Code
Service IPEB – Dated 20020117
Condition
Chronic Pain due
to
Bilateral Lower Extremity
Stress Fractures
Mild Scoliosis
Osteopenia
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 10%
5299‐5003
Not Unfitting
Not Unfitting
Rating
10%
VA (STR) – All Effective Date 20020419
Condition
Residuals of Status Post Stress
Fracture, Right Lower Extremity
Residual of Status Post Stress
Fracture, Left Lower Extremity
No VA Entry
Osteopenia
Not Service‐Connected x 5
Combined: 20%
Code
5299‐5262
5299‐5262
5299‐5295
Rating
10%
10%
Exam
STR
STR
NSC
STR
ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application
regarding the significant impairment with which her service‐incurred condition continues to
burden her. The Board wishes to clarify that it is subject to the same laws for service disability
entitlements as those under which the Disability Evaluation System (DES) operates. The DES
has neither the role nor the authority to compensate members for anticipated future severity
or potential complications of conditions resulting in medical separation. That role and
authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under
a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence
proximal to separation in arriving at its recommendations, but its authority resides in evaluating
the fairness of DES fitness decisions and rating determinations for disability at the time of
separation. The Board further acknowledges the CI’s contention for ratings for other conditions
documented at the time of separation, and notes that its recommendations in that regard must
comply with the same governance. While the DES considers all of the member's medical
conditions, compensation can only be offered for those medical conditions that cut short a
member’s career, and then only to the degree of severity present at the time of final
disposition. The DVA, however, is empowered to compensate service‐connected conditions
and to periodically re‐evaluate said conditions for the purpose of adjusting the veteran’s
disability rating should the degree of impairment vary over time.
Chronic Pain, due to Bilateral Lower Extremity Stress Fracture Condition. The CI first
complained of bilateral lower extremity pain to the top of her feet and hips in January 2001,
during advanced individual training. She was diagnosed with bilateral stress fractures and was
continued on duty with an activity as tolerated profile, and non‐steroidal anti‐inflammatory
medications. Because of her lack of response to conservative treatment, she was referred to
the MEB in August 2001. At that time, she reported no relief of her symptoms and described
her pain to be at a baseline 4‐5/10 on a constant and daily basis, with exacerbations to 9‐10/10
with activities requiring bed rest and cessation of all activity. She reported being unable to lift
more than 20 pounds, or stand for more than 20 minutes at a time. The MEB physical exam
indicated that she had a normal gait, 5/5 motor in all extremities without atrophy. Hip range‐
of‐motion (ROM) was full with tenderness to palpation, but without painful motion. Knee ROM
was equal bilaterally, 0‐130 degrees (normal 0‐140 degrees). Neurovascular exam was within
normal limits. Bone scan was positive for Grade I stress changes to the bilateral lessor
trochanter, bilateral knees, ankles, and feet. There were no VA Compensation and Pension
exams prior to or after separation.
Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB
were mild scoliosis T1‐L2 at 13 degrees and osteopenia. The Board’s first charge with respect
to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.
The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3
(Resolution of reasonable doubt) standard used for its rating recommendations, but remains
adherent to the DoDI 6040.44 “fair and equitable” standard. The MEB narrative summary
(NARSUM) states that the scoliosis is congenital in nature and asymptomatic without
neurological compromise. It was not incurred or aggravated by active duty and produced no
pain. Additionally, with regard to the osteopenia, the NARSUM states that there is no evidence
to conclude that it was incurred or aggravated by active duty service. This too was felt to be
asymptomatic although it was acknowledged to have contributed to the CI’s unfitting stress
fractures. Neither of these conditions was profiled; neither was implicated in the commander’s
statement; and, neither was judged to fail retention standards. Both were reviewed by the
action officer and considered by the Board. There was no indication from the record that either
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 either
of the contended conditions and, therefore, no additional disability ratings can be
recommended.
2 PD1200913
The Board directs attention to its rating recommendation based on the above evidence. The
PEB rated the bilateral lower extremity stress fractures under the single analogous 5003
degenerative arthritis code and relied on AR 635.40 (B.24 f.), or invoked the USAPDA pain
policy; therefore, not applying separately compensable VASRD codes, combining the left lower
extremity stress fracture, and right lower extremity stress fracture as a single unfitting
condition assigned a rating of 10%. This coding approach is countenanced by AR 635‐40 (B.24
f.), but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation.
The Board must therefore apply separate codes and ratings in its recommendations if
compensable ratings for each affected extremity are achieved IAW VASRD §4.71a. 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 Board judges that two separate ratings are warranted in this case, and that the
requirement that each “unbundled” condition was unfitting in and of itself is satisfied. The
Board first considered whether the right and left extremity conditions were separately unfitting
when considered alone. The Board concluded the evidence of the record indicated the
extremities were equally affected, and each alone would have limited duty performance.
Therefore, all members agreed both lower extremities were unfitting for continued military
duty. The Board next considered a rating recommendation for each extremity. The Board
noted the normal examination including normal ROM, normal strength, normal gait, and
absence of atrophy at the time of the MEB NARSUM, and concluded that a separate 10% rating
for each extremity, coded 5299‐5262 for slight disability, was supported by the evidence of the
record and conceded application of VASRD §4.59 (Painful motion) with application of §4.45
(The joints) and §4.40 (Functional loss). After due deliberation, considering all of the evidence
and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board recommends a
disability rating of 10% for the left lower extremity stress fracture condition and 10% for the
right lower extremity stress fracture with bilateral factor of 1.9% for a combined total disability
rating of 20%.
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 bilateral stress fractures was operant in this case
and the condition was adjudicated independently of that policy by the Board. In the matter of
the bilateral stress fractures condition, the Board unanimously recommends that it be rated for
two separate unfitting conditions as follows: Left lower extremity coded 5299‐5262 and rated
10% and right lower extremity coded 5299‐5262 and rated 10%; both IAW VASRD §4.71a. In
the matter of the contended mild scoliosis and osteopenia 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.
3 PD1200913
RECOMMENDATION. The Board recommends that the CI’s prior determination be modified as
follows, effective as of the date of her prior medical separation:
VASRD CODE
5299‐5262
5299‐5262
Combined (w/BLF)
RATING
10%
10%
20%
UNFITTING CONDITION
Stress Fractures Left Lower Extremity
Stress Fracture Right Lower Extremity
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120604, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXX, DAF
President
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXX, AR20130001039 (PD201200913)
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:
4 PD1200913
Encl
XXXXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
5 PD1200913
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