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AF | PDBR | CY2012 | PD2012 01728
Original file (PD2012 01728.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxxxxxx     CASE: PD1201728
BRANCH OF SERVICE: Army  BOARD DATE: 20131107
SEPARATION DATE: 20030503


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Army Reserve PVT/E-1 (91W Trainee/Health Care Specialist) medically separated for unfitting bilateral shin splints. The CI began having bilateral lower extremity pain during basic training with gradual onset of pain after episodes of prolonged running and marching. The condition persisted despite treatment and she was unable to pass an Army Physical Fitness Test. The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent L3 profile (113111) and referred for a Medical Evaluation Board (MEB). The bilateral shin condition, characterized as “Chronic bilateral tibial shin splints,” was forwarded to the Physical Evaluation Board (PEB) in accordance with (IAW) AR 40-501. The MEB also identified and forwarded 2 other conditions (“Right foot pain, stress fractures” and “Mitrol valve murmer” [sic]) for PEB adjudication. The PEB adjudicated “chronic bilateral shin splints without limitation of motion” as unfitting, rated 0% . The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “Symptoms have worsened. Daily activities are harder. Medical intervention is needed. ”


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 ratings for the unfitting bilateral shin condition are addressed below. Of the conditions determined to be not unfitting by the PEB, members judged that the right foot pain and valve conditions were specified sufficiently in the application to meet the DoDI 6040.44 scope requirements; and are accordingly addressed below. No additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 IPEB – Dated 20030317
 VA - 7 Yrs 6 Mos. Post-Separation
Condition
 Code Rating Condition Code Rating Exam
Chronic Bilateral Shin Splints without Limitation of Motion 5022 0% Bilateral Compartmental Leg, Chronic Shin Splints 5299-5262 NSC 20101115
Right Foot Pain, Stress Fractures Not Unfitting Fracture Residuals, Right Foot 5284 NSC 20101115
Mitral valve murmur Not Unfitting No VA Entry
No Additional MEB/PEB Entries
 Other x 4 NSC 20101115
Combined: 0%
 Combined: 0%
Derived from VA Rating Decision (VARD) dated 20121205 ( most proximate to date of separation [DOS]).

ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. 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 DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA), but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all 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. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. The complete service treatment record (STR) was not available in evidence before the Board which noted the previous extensive efforts to obtain them documented in the DVA records in evidence. However, the MEB narrative summary (NARSUM) and MEB exam along with the results of imaging studies, several commander’s statements and final profile were available. Based on the previous documented unsuccessful attempts to obtain records, the Board concluded that additional attempts at obtaining additional documentation would likely be futile and introduce additional delay in processing the case and, it is was judged by the members that the missing evidence would not materially alter the Board’s recommendations.

Chronic Bilateral Shin Splints. The CI sought care for bilateral shin pain beginning 2002 during basic training. X-rays and bone scan were consistent with shin splints (tibial periostitis) without stress fracture. The MEB physical examination completed 21 November 2002 (DD Form 2808), 8 months prior to separation, demonstrated that she was tender along the anterior tibia mid shaft bilaterally but was without skin discoloration. The orthopedic MEB NARSUM 10 weeks prior to separation, noted the CI complained of bilateral shin pain and inability to pass the run on her physical fitness test due to pain. The NARSUM recorded that the CI complained of pain with prolonged standing, prolonged walking and any running. On examination, the shins were tender to palpation. The remainder of the extremity examination was normal, including knees. The examiner concluded with diagnosis of chronic bilateral shin splints and characterized the pain as “slight and frequent.” The commander’s memorandum 4 months prior to separation stated her shin condition prevented the CI from critical field duties such as “…lift patients on litters, lift medical equipment, and stand for long periods of time.” There was no VA Compensation and Pension (C&P) examination proximate to separation (the first C&P examination was over 8 years after separation). At the time of her original claim for VA disability compensation for shin splints in August 2010, the CI stated “I have not seen a doctor regarding these conditions since I was discharged from service.”

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the bilateral shin splints condition to code 5022 (periostitis) without limitation of motion and assigned a single 0% rating. The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting. The Board also noted that “bundling,” the combining of two or more major joints is permissible under the VASRD 5003 rating guidelines (which apply to 5022 for rating), and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings. The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings. When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability. When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.

The Board first considered whether each the right and left shin splint conditions remained separately unfitting, having de-coupled them from a combined PEB adjudication. Available service records and examinations summarized above reflected symptoms of both right and left shin splint conditions without distinguishing between the sides. The Board concluded that the evidence of the STR reasonably supported a conclusion that each the right and left shin splint conditions standing alone would have caused the CI to be referred into the DES and to have been determined to be unfit. The Board then considered its rating recommendation for the unfitting right and left shin splint conditions at the time of separation. The Board noted that the approach by the PEB using 5003 (5022 code is rated according to the 5003 guidelines) allows for rating bilateral major joints with a single rating when there is not any compensable limitation of motion. However there was no involvement of joints, either the knees or ankles. The Board also considered the rating using the VASRD diagnostic code 5262, impairment of the tibia, however while there was evidence of stress reaction there was no fracture with non-union or malunion as specified under this code. The Board therefore concluded it was reasonable to consider rating analogously under either code with consideration of §4.40 (functional loss). The Board considered whether a minimum rating of 10% was achieved with application of §4.40 (functional loss). The Board noted the fact that the CI did not seek care for the shin splint condition for several years after separation indicating that there was not significant functional loss sufficient to support a minimum rating at the time of separation. Consistent with this is the fact that the normal course for shin splints is full recovery once the inciting activity is discontinued. 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 right foot pain and mitral valve murmur conditions were not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Heart murmur condition. While on active duty, the CI was noted to have a heart murmur. Evaluation by echocardiography demonstrated the presence of a bicuspid heart valve, a congenital condition. No duty restrictions were required. The Board concluded there was no cause to recommend a change in the PEB fitness determination for heart murmur condition.

Right foot condition. At the time of the MEB examination, documented on DD Form 2807 performed on 21 November 2002, right foot pain characterized as minimal – slight/constant interference with running and marching was noted. The CI had experienced an inversion injury of the right foot in July 2002. X-rays of the foot were normal at that time. A bone scan performed on 19 September 2002 demonstrated uptake consistent with a stress fracture in the right foot. A follow up bone scan (whole body) on 25 October 2002 was reported as normal in this area (showed abnormal uptake only in the shins and the remainder of the bones and soft tissues were reported to be normal by the radiologist). The commander’s letter dated 22 November 2002 noted limitations from shin splints without mention of foot problem. Although the physical profile dated 4 March 2003 listed right foot pain, the orthopedic MEB NARSUM from February 2003 made no mention of foot problems. The MEB forwarded the right foot pain condition as medically acceptable. The right foot condition was reviewed and considered by the Board. 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 right foot pain condition and so no additional disability rating is 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. 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 right foot pain and heart valve 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION VASRD CODE RATING
Chronic Bilateral Shin Splints without Limitation of Motion 5022 0%
Right Foot Pain, Stress Fractures Not Unfit --
Mitral Valve Murmur Not Unfit --
COMBINED 0%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120731, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         xxxxxxxxxxxxxxxxxxxxxxx, DAF
         President
         Physical Disability Board of Review



SFMR-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 xxxxxxxxxxxxxxxxxxxxxxxxx, AR20140002043 (PD201201728)


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                                                  xxxxxxxxxxxxxxxxxxxxxxx
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)


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