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AF | PDBR | CY2012 | PD2012 01394
Original file (PD2012 01394.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE NUMBER: PD1201394
BRANCH OF SERVICE: Army  BOARD DATE: 20130404
Separation Date: 20021104


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard member, PVT/E-1 (88M, Motor Transport Operator), medically separated for bilateral tibial stress fractures. The CI developed right leg pain after 2 weeks of basic training and then after an 8 week PTRP, once training resumed, pain developed in her left leg. Despite aggressive physical therapy (PT) and non-steroidal anti-inflammatory drugs (NSAIDs), the CI failed to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded bilateral tibia stress fractures to the Physical Evaluation Board (PEB). No other conditions were submitted by the MEB. The PEB adjudicated bilateral tibia stress fractures as medically unacceptable IAW AR 40-501. The PEB adjudicated the bilateral stress fractures as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and she was medically separated with a 0% service disability rating.


CI CONTENTION: “I have issues with the leg I injured [h]as gotten wors[e] as time has passed. I have pain everyday” [sic]


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (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 rating for the unfitting bilateral tibia stress fractures is addressed below. 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:

Service IPEB – Dated 20021016
 VA (3 Mo. Post-Separation) – Effective 20021105
Condition
 Code Rating Condition Code Rating Exam
Bilateral Tibial Stress Fractures
 5099-5003 0% Residuals, Stress Fracture Right Tibia 5299-5262 10% 20030131
Residuals, Stress Fracture Left Tibia 5299-5262 0% 20030131
Combined: 0%
 Combined: 10%


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her but must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate service 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 Veteran Affairs, operating under a different set of laws. The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. The Board utilizes service and VA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration of post-separation evidence. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

The PEB rated bilateral tibia stress fractures under the single analogous code 5099-5003 Arthritis, degenerative (hypertrophic or osteoarthritis) code. 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 joint are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was reasonably justified as unfitting in and of itself.

Bilateral Tibial Stress Fractures Condition. The Board first considered if the right and left tibial Stress Fractures, having been de-coupled from the combined PEB adjudication, each remained independently unfitting as established above. The CI was on a permanent L3 profile with significant limitations that would have resulted from either condition alone. The MEB examiner documented that while the CI’s pain did improve with rest, she was unable to return to training because of worsening symptoms with increased activity. The Board agreed that the right and left tibia stress fracture, as isolated conditions, would have each rendered the CI incapable of continued service within her training for her MOS and accordingly merits separate service ratings.

There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Knees ROM
(In degrees)
 MEB NARSUM ~ 1.5 Mo. Pre-Sep VA C&P ~ 3 Mo. Post-Sep
Left Right Left Right
Flexion (140 Normal)
 140 (145)
 140
Extension (0 Normal)
 0 (2)
 0
Comment
 Normal gait; no joint line tenderness; intact to varus and valgus stress; 1A Lachman; intact anterior and posterior drawer;

LEGS: TTP junction middle distal third along subcutaneous border of tibia;

ANKLES: 20° dorsiflexion, 50° plantar flexion; sensation/motor intact;

“pain steady”		 Normal gait; n o TTP; cruciate and collateral ligaments stable, negative McMurray and torsion tests; no effusion; no crepitus;

LEGS: tender right > left middle and distal third tibia region medially; muscle strength 5/5

ANKLES: no TTP; 20° dorsiflexion, 45° plantar flexion; no pain

 Both: “Increased pain with exertion ; ” Right knee hurts daily, left hurts once in a while
§4.71a Rating
 1 0% 1 0% 1 0% 1 0%

The right and left tibia stress fractures and pain resulting from them are well documented in the service t reatment r ecord . The CI initially reported pain in her right leg in her first 2 weeks of training in April 2002 but a month later had bilateral leg pain. The CI underwent extensive PT and rest for 8 weeks and her pain resolved. However, a week after returning to training, she had increasing pain in the bilateral tibias with any activity. An X - ray performed in May 2002 was consistent with a healing stress fracture of the proximal and distal tibia; however, there is nothing that identifie d which tibia was affected . A right tibia X -ray in July 2002 showed findings consistent with a healing stress fracture of the distal posterior–medial right tibia. A bone s can in August 2002 indicated grade II stress fracture changes posterior bilateral mid to distal tibias as well as stress reactions around both knees and the right ankle . The MEB Narrative Summary (NARSUM) examinatio n approximately a month prior to separation indicated that the CI had bilateral steady pain along the medial aspect of the distal tibia with the left leg more symptomatic than the right leg. The examiner opined that the CI was at potential risk to do more harm to herself by continuing training. The NARSUM physical exam findings are summarized in the chart above. The CI was issu ed a permanent L 3 Profile for bilateral tibial stress fractures with restrictions of no run ning , jump ing or march ing . The VA Compensation and Pension (C&P) examination approximately 3 months after separation noted that the CI had daily right tibia pain in the middle distal third region and less frequent pain in the left tibia, and left uppermost anterior thigh discomfort if she lengthened her stride; however, there was increased pain bilaterally with exertion. The VA C&P physical exam findings are summarized in the chart above.

The Board directs attention to its ra t ing recommendation based on the above evidence. As described above the PEB bundled both conditions in its application of the USAPDA pain policy. The VA rat ed each tibia analogous to VASRD 5262 Tibia and fibula, impairment of as is frequently used for tibial stress fractures. The right tibia was rated 10% for sligh t disabili ty. Th e left tibia was assigned a 0% rating with an absence of slight disability, presumably based on the report of only occasional pain in the left leg. There were no other C&P examinations or VARD s done, so there was no VA reevaluation of the CI’s condition . While the VA documents a decreased level of pain in the left leg (in the absence of increasing activities) as compared to the NARSUM examination, it was complet ed after separation and aft er an additional 4 months of rest. The NARSUM examination completed prior to the date separation, was also closer in time to that date, and therefore is given more probative value by the Board. With the application of §4.3 Reasonable doubt, the Board opines that the CI had a slight level of disability in both legs at the time of separation. After due deliberation , in consideration of the totality of the evidence, the Board concluded that the r ight and l eft tibia stress f racture s were each separately unfitting and considering all of the evidence and mindful of VASRD §4.3 R easonable doubt, the Board recommends a disability rating s of 1 0% coded 5 2 99-5 262 IAW VASRD §4.71a for the right tibia stress f racture and 1 0% coded 5299-5262 IAW VASRD §4.71a for the left tibia stress f racture .


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 the bilateral tibial 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 tibial stress fractures condition, the Board, by a vote of 2:1, recommends that each joint be separately adjudicated as follows: an unfitting right tibia stress fracture condition coded 5299-5262 and rated 10% and an unfitting left tibia stress fracture condition, coded 5299-5262 and rated 10%, both IAW VASRD §4.71a. The single voter for dissent, who recommended adopting the VA coding of 5299-5262 rated at 10% for the right tibia stress fracture and coding of 5299-5262 rated at 0% for the left tibia stress fracture 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
Right Tibia Stress Fracture
 5299-5262 10%
Left Tibia Stress Fracture
 5299-5262 10%
COMBINED (w/ BLF)
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120802, 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 AR20130009618 (PD201201394)
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:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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