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AF | PDBR | CY2012 | PD2012 01102
Original file (PD2012 01102.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  BRANCH OF SERVICE: Army
CASE NUMBER: PD1201102   SEPARATION DATE: 20030614
BOARD DATE: 20131010


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31F/Network Systems Operator), medically separated for bilateral lower leg pain secondary to shin splints. The CI developed pain in both shins when running. A diagnosis of shin splints without fracture was made. The bilateral lower leg pain could not be adequately rehabilitated with treatment 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 MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the bilateral lower leg pain as unfitting, rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.
CI CONTENTION : “I was awarded a 30% disability by the VA and believe that my Military disability is unfair since the VA disability was based on what the Military found me unfit for . "


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 conditions “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. 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 Board for Correction of Military Records.


RATING COMPARISON :

Service PEB – Dated 20020305
 VA (1 Mo. Pre-Separation) – All Effective Date 20030615
Condition
 Code Rating Condition Code Rating Exam
Bilateral Lower Leg Pain 5009-5003 0% Bilateral Shin Splints 5299-5020 0% 20030515
↓No Additional MEB/PEB Entries↓
 Left Ankle Sprain 5299-5271 10% 20030515
Right Ankle Sprain 5299-5271 10% 20030515
DJD T-Spine 5010-5291 10% 20030515
Combined: 0%
 Combined: 30%


ANALYSIS SUMMARY: The Board acknowledges the CI’s assertions that the PEB was unfair in its adjudication. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected improprieties in the processing of his case. The PEB combined the bilateral lower leg conditions as a single unfitting condition rated at 0%. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a. If the Board judges that two separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. Thus 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.

Bilateral Leg Pain Condition. The CI developed painful shins during basic training. The pain was related to exertion or running and relieved by rest. X-rays obtained on 12 March 2001 were suggestive of bilateral stress fractures. A bone scan obtained on 18 December 2001 revealed bilateral irregularities of small areas of the cortex of the tibia (shin splints) without stress fractures or other tibia pathology. On multiple clinic visits, the shin pain was mild, bilaterally equal and related to running or extensive walking. A profile obtained 11 February 2003 permitted the CI to walk at his own pace, swim/march up to 1 mile and perform calf/hamstring stretching as well as turn/bouncing exercises. At the MEB evaluation conducted on 23 April 2003, approximately 2 months before separation, the CI noted bilateral shin pain with running, walking and rucking. On examination, slight tenderness of the mid tibia was noted bilaterally. Exam of the lower extremities were normal to include, strength, sensation, reflexes, range-of- motion and stability of the knees, calves and ankles. At the VA Compensation and Pension (C&P) evaluation, completed 15 May 2003 a month prior to separation, the CI reported pain with running four times a week improved with non-narcotic medication. On examination, gait and posture were normal. Slight tenderness of the both tibia was present without other abnormality or irregularity noted. The examiner noted the diagnosis to be “bilateral shin splints, intermittently active.”

The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA both bundled the leg conditions and rated them together at 0%. The Army utilized VA code 5003 and the Army pain policy; the VA utilized code 5020 (synovitis). The Board unbundled the condition to determine if the rating of each leg individually would appropriately support a higher rating. The Board unanimously agreed that each leg was separately unfitting based on the medical profiles and commander’s statement. The Board further unanimously agreed that although the PEB rated the leg condition as “bilateral lower leg pain,” the reference was to the shin splint condition as clearly articulated in the PEB document (DD Form 199). The Board unanimously agreed that the bilateral shin splint conditions were intermittent, mild and symptomatically equivalent. The Board adjudged that neither rose to the minimal rating criteria IAW §4.59 or §4.40. The Board found no other appropriate VASRD codes for consideration. 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 lower leg condition.
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 lower leg condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral lower leg condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. 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 leg pains 5009-5003 0%
COMBINED
 0%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120702, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         XXXXXXXXXXXXXXXXXX, DAF
         President
         Physical Disability Board of Review


SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB / XXXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20130021939 (PD201201102)


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                                                  XXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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