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AF | PDBR | CY2012 | PD2012 01100
Original file (PD2012 01100.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201100
BRANCH OF SERVICE: Army  BOARD DATE: 20130730
SEPARATION DATE: 20020731


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (91K/Laboratory Technician) medically separated for bilateral foot and tibial conditions. The CI started experiencing bilateral lower extremity and foot pain during basic training, and was diagnosed with shin splints and bone stress reactions of the feet. Despite conservative treatment, the conditions could not be adequately rehabilitated to satisfy the physical requirements for further training and service. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Separate conditions of “chronic bilateral shin splints” and “chronic bilateral feet stress reactions” were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions were submitted. The PEB adjudicated “bilateral foot and tibial pain” as a single unfitting condition, rated 0%, under criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated.


CI CONTENTION: “The conditions are increasingly worse even with steps to correct them.”


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 bilateral tibial/foot condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of this Board. Any conditions or contentions 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. The Board acknowledges the CI’s information regarding the significant impairment with which her worsening service connected conditions continue to burden her; but, must emphasize that the Disability Evaluation System (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, operating under a different set of laws. Post separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of military separation.


RATING COMPARISON:

Service IPEB – Dated 20020624
 VA (3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Foot and Tibial Pain…
 5022 0% Bilateral Stress Reaction of Anterior Shins /Bilateral stress Fractures of Feet 5099-5022 0% 20021028
No Additional MEB/PEB Entries
 Other x 1 (Not Service Connected X 2) 20021028
Rating: 0%
 Rating: 0%
Derived from VA Rating Decision (VA RD ) dated 200 21105 ( most proximate to date of separation ).


ANALYSIS SUMMARY: The PEB combined a bilateral tibial condition (periostitis, or shin splints) and bilateral foot condition (bone stress reactions) under a single disability rating; coded 5022 (periostitis), which rates analogously to 5003 (degenerative arthritis). Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints (tibias analogous to joints). The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. Since the Board’s decisions in these areas can yield various recommendations which depend on the interplay of all the considered conditions with both DES fitness principles and VASRD rating options; the Board will present the evidence for each of the combined conditions, followed by the discussion of recommendation options as deliberated; and, the resulting decisions.

Bilateral Foot Condition. The CI’s enlistment physical documented “moderate” pes planus (flat feet). The CI initially complained of bilateral ankle pain in July 2001, about a month after starting basic training. Three weeks later, she developed right hip and foot pain after twisting her right ankle while running. A bone scan in September 2001 (taken for right hip pain) revealed a normal hip and “mild uptake in feet” (left greater than the right), diagnosed as “stress changes.” Despite nearly 5 months of physical therapy, profiling, medications, and orthotics, her bilateral foot pain continued. In March 2002 (4 months prior to separation), an orthopedic provider diagnosed “symptomatic pes planus with increased uptake noted on bone scan.” The commander’s statement expressed the opinion that the CI was capable of performing her MOS duties, although unable to satisfy Army Physical Fitness Testing (APFT) requirements for advancement. The narrative summary (NARSUM) classified the foot pain as “slight and occasional;” and, for limitations, documented only the APFT restrictions (permitting activities “as tolerated”). The examination revealed tenderness and minimal swelling to the arch of both feet and full range-of-motion (ROM) at the ankles, with no painful motion recorded. At the VA Compensation and Pension (C&P) evaluation (3 months after separation), the CI reported improvement with less running and civilian footwear; but, “still has discomfort … with prolonged weightbearing … such as standing.” The VA examination noted a normal gait with no direct comment on foot or ankle findings. Normal lower extremity strength and neurological findings were detailed. Functional findings were documented as, “She is able to rise on her toes as well as her heels. She is able to rise from a squat position and bend over and touch her toes without any complaints of discomfort or facial grimacing.”

Bilateral Tibial Condition. The first entry for this condition in the service treatment record was a clinic visit in February 2002 (5 months prior to separation) which noted bilateral shin pain after running, confirmed by bone scan as mild bilateral shin splints. The follow-up orthopedic provider added that diagnosis to the foot condition, without change in the treatment plan; and MEB proceedings were already in place. The NARSUM classified the pain from shin splints as “slight and occasional”; and, did not specify limitations apart from APFT restrictions as for the foot condition. The NARSUM physical exam noted, “tenderness to palpation along the midshaft tibia, left greater than right, no swelling noted, full active range of motion at the knee and ankle joint, no discoloration, no bruising, skin intact.” The C&P evaluation proximate to separation addressed the foot and shin diagnoses as a single condition, as was elaborated above. The VA physical examination (in addition to the findings incorporated from the preceding narrative) documented, “She has no tenderness with palpation along her shins. There is no edema to her lower extremities.”

Recommendations for Foot and Tibial Conditions. The Board directs attention to its recommendations based on the above evidence. Members first deliberated if the bilateral foot and bilateral tibial conditions were reasonably justified as separately unfitting. With respect to the bilateral foot condition, the evidence indicates worse severity on the left. Members agreed that the right foot was reasonably conceded as separately unfitting; although there was not compensable ROM impairment or satisfactory evidence of painful motion to support separate ratings under VASRD §4.71a criteria. The bilateral diagnosis satisfies the 5003 criterion of “2 or more major joints,” justifying a bilateral 10% rating; and, members agreed that application of the analogous code 5099-5022 (periostitis, defaulting to 5003) was a good clinical fit for the diagnosis and disability. Consideration was given to analogous rating (separately or bilaterally) under code 5276 (acquired pes planus); but, since pes planus itself was preexisting and the evidence would not support a rating favorable to 5003, the option was rejected.

With respect to the bilateral tibial condition, the evidence raises doubt as to whether the condition was separately unfitting. The MEB had been initiated for the feet prior to the tibial diagnosis, and the additional functional impairment (apparently limited to the same APFT limitations already in place) is dubiously justified as separately unfitting. Member consensus was to concede the shin splints as separately unfitting, however, since it was profiled and judged to separately fail retention standards by the MEB; although a dissenting member reasonably concluded that the tibial condition was unfitting only by virtue of overall effect; not separately. With regards to a rating recommendation, analogous rating under 5003 criteria was deliberated; but, it was agreed that long bone periostitis without joint involvement could not be equated (even analogously) to degenerative arthritis. The best VASRD fit and common coding approach for shin splints is analogous 5299-5262 (tibia and fibula, impairment of), which require at least ‘slight’ contiguous ankle or knee disability for the minimum 10% rating. Upon deliberation, however, members agreed that the minimum 10% rating criterion was not adequately supported by the evidence; even with consideration to VASRD §4.40 (functional loss). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends separate coding and rating recommendations for the bilateral tibial and bilateral foot conditions as elaborated above.


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 service combined bilateral tibial and bilateral foot conditions, the Board by a vote of 2:1 recommends that it be rated for two separate unfitting conditions as follows: a bilateral foot condition coded 5099-5022 with a disability rating of 10%, and a bilateral tibial condition coded 5299-5262 with a disability rating of 0%; both IAW VASRD §4.71a. The single voter for dissent (who recommended no change in the PEB adjudication) did not elect to submit a minority opinion. 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 Foot Pain Due to Stress Reactions
 5099-5022 10%
Bilateral Tibial Pain Due to Stress Reactions
5299-5262 0%
COMBINED
 10%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120629, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130018114 (PD201201100)
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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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