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AF | PDBR | CY2013 | PD-2013-02037
Original file (PD-2013-02037.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02037
BRANCH OF SERVICE: Army  BOARD DATE: 20150312
SEPARATION DATE: 20040811


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Food Service Specialist) medically separated for bilateral shin splints. The bilateral shin splints condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty, but was authorized to perform an alternate aerobic physical fitness test. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). “Bilateral shin splints,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB adjudicated “bilateral shin splints, without limitation of motion” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “Right Ankle Strain - This injury needed ankle reconstruction which was not done. (see attachment) This injury has led to sinus tarsitis and I have been in physical therapy for a while as well as getting corticosteroid shots in my ankle and having to purchase special footwear to protect my ankle. Photorefractive keratectomy - this laser surgery has led to both my eyes being extremely sensitive to sunlight and I have to wear protective eyewear every time I am in the sun. Shin Splints, right leg - I still have pain and shin splints resulting from this injury, I have been in physical therapy for this injury and it is still in pain. Degenerative Joint Disease - This is documented in my file. I will attach a copy that shows it was found in the military. This is from the constant marching and high impact exercises and other trainings. Delayed union/nonunion stress fracture, left tibial shaft - This injury was badly aggravated during service and this injury still causes pain and hurts with continuous use. Delayed union/nonunion stress fracture, right 3rd metatarsal shaft - This injury was badly aggravated during service and this injury still causes pain and hurts with continuous use. The two stress fractures happened at the same time and aggravate each other since one is on each leg.”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

IPEB – Dated 20040617
 VA* - (5 days Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Shin Splints 5022 0% Delayed Union/Nonunion, Stress Fracture, Left Tibial Shaft 5299-5262 10% 20040816
Shin Splints, Right Leg 5299-5262 NSC 20040816
Other x 0 (Not In Scope)
 Other x 6
RATING: 0%
 COMBINED RATING: 10%
* Derived from VA Rating Decision (VA RD ) dated 200 50609 (most proximate to date of separation [ DOS ] ) .


ANALYSIS SUMMARY: The PEB combined the right and left shin splints conditions under a single service disability rating, coded 5022 (Periostitis). Although this approach may comply with service policy, the Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition 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 is reasonably justified as separately unfitting. 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. If it is judged that one or more of the combined conditions satisfies the unfitting stipulation from above, separate ratings IAW the VASRD are recommended, although the Board may not recommend a lower combined rating than that achieved by the PEB’s approach.

Bilateral Shin Splints Condition. The CI was service-connected by the VA for a left tibial stress fracture from a previous term of service. After re-entering the service in November 2002, he was evaluated in September 2003 with complaints of left leg pain which was present for 2-3 weeks. Imaging studies showed stress changes of the medial tibial plateau bilaterally. At a follow-up visit on 26 September 2003 the CI reported that his duties in the mess hall caused minimal left leg pain. Despite profile restrictions, by 5 January 2004 the CI was complaining of bilateral shin pain. The examiner reported that X-rays showed no active fracture and a diagnosis of bilateral shin splints was rendered. A physical therapy evaluation on 25 February 2004 noted full active range-of-motion (ROM) of ankles and knees, and normal muscle strength.

On the MEB physical DD Form 2807 on 3 March 2004 (5 months prior to separation), the CI checked “No” for “Impaired use of … legs.” The MEB physical exam reported mild tenderness along the anterior leg muscle border. The legs were noted to have active full ROM. At the narrative summary evaluation on 6 April 2004 the CI’s chief complaint was bilateral shin pain. Symptoms were exacerbated by running, prolonged standing, marching and jumping. Examination showed mild muscle tenderness along the anterior legs. There was no swelling or redness. Motion of the legs was considered to be “intact.” On 7 June 2004 (2 months prior to separation) the CI indicated that his shin pain was 6/10 in severity.

At the VA Compensation and Pension exam performed 5 days after separation, the CI reported pain in both shins graded at 4/5 intensity. Over the counter pain medication provided good pain relief. He could walk 1-mile or stand 1-hour before the pain became “unbearable.” Examination showed a normal gait. Tenderness along the anterior leg muscle bilaterally was present, but both tibial bones were non-tender. Ankle dorsiflexion was 20 degrees (normal 20 degrees) and plantar flexion 45 degrees (normal 45 degrees) bilaterally. Squatting and rising were accomplished without apparent discomfort. The examiner’s diagnosis was bilateral shin splints with stress fracture left tibia.

The Board directed attention to its recommendations. The Board considered if each shin splint condition met the Board’s threshold for separate rating (as elaborated above). However, the option of not recommending separate disability ratings, but rating both shins together at 10% coded analogously to 5022 (which defaults to 5003, degenerative arthritis) was also deliberated. In this case a bilateral shin splint condition was determined to fail retention standards and was profiled. Member consensus was that each shin should be conceded as separately unfitting, and that coding and rating features were logically identical. The VA assigned a 10% rating for a left tibial stress fracture under an analogous 5262 code (tibia and fibula, impairment of), but did not service-connect right shin splints. While the 5022 code defaults to rating based on “limitation of motion of affected parts” there was no limitation of motion in evidence to justify a compensable rating. The Board debated if examination findings depicted a sufficiently severe objective functional impairment to warrant application of §4.40 (functional loss) or §4.59 (painful motion). Board members agreed that the evidence did not support this approach, and therefore a 0% rating for each shin was warranted. Rating under an analogous 5262 pathway was also deliberated, but members concluded that the 5022 rating pathway was clinically accurate. Given the rating recommendation as just elaborated, the Board concluded that there is no benefit to the CI in unbundling the bilateral shin splint condition. Therefore, 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 splint 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. 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 bilateral shin splints condition and IAW VASRD §4.71a, the Board by a majority vote 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 re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131023, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record



XXXXXXXXXXXXXXX
President
Physical Disability Board of Review
SAMR-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 XXXXXXXXXXXXXXX, AR20150011180 (PD201302037)


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                       XXXXXXXXXXXXXXX
                                    Deputy Assistant Secretary of the Army
                                    (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA


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