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AF | PDBR | CY2013 | PD-2013-02562
Original file (PD-2013-02562.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-02562
BRANCH OF SERVICE: Army  BOARD DATE: 20150417
SEPARATION DATE: 20020401


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Calvary Scout Trainee) medically separated for a bilateral leg condition. The condition could not be adequately rehabilitated 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 “recurrent bilateral tibial stress fractures” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “chronic leg pain, due to recurrent bilateral tibial stress fractures” as unfitting, rated 0%, c iting application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “I had stress fractures in my knees, shins, ankles and feet that were recurrent but only my knees were rated for disability. I still get pain in my feet, shins, and knees and have since being discharged.”


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 Veterans Affairs Schedule for Rating Disabilities (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 20020315
 VA* - Based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Leg Pain, due to Recurrent Bilateral Tibial Stress Fractures 5099-5003 0% Recurrent Bilateral Tibial Stress Fractures 5099-5003 10% STR
Other x 0 (Not In Scope)
 Other x 3
RATING: 0%
 RATING: 10%
* Derived from VA Rating Decision (VA RD ) dated 200 20410 (most proximate to date of separation [ DOS ] ) .


ANALYSIS SUMMARY: The PEB combined the left and right leg pain conditions under a single disability rating, coded analogously to 5003 (chronic leg pain). Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable 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; with the stipulation that the result may not be lower than the overall combined rating from the PEB. 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.

Chronic Leg Pain Condition. Review of the STR showed that the CI presented in his fifth week of training on 27 November 2001 with a 4-day history of bilateral shin pain. Joint pain was not present. Persistent pain (left worse than right) was evaluated with a bone scan on 7 December 2001 which showed stress reactions of the tibial shafts. Conservative management led to resolution of pain and an assessment on 12 February 2002 that bilateral tibial stress fractures were clinically healed. However, within two weeks of resumption of training, symptoms returned.

At the narrative summary evaluation, on 26 February 2002 (a month prior to separation), the CI reported that pain was localized to the distal medial third of the tibia bilaterally. Examination showed tenderness of the distal third of each tibia. The examiner’s diagnosis was recurrent bilateral tibial stress fractures. The commander’s statement on 26 February indicated that bilateral tibial stress fractures prevented performance of duties. At the MEB exam on 7 March 2002, bilateral medial tibial tenderness was confirmed. There was no VA Compensation and Pension exam for review.

The Board directed attention to its rating recommendation based on the above evidence. As previously elaborated, the Board must first consider whether each tibial stress fracture remains separately unfitting, having been de-coupled from a combined PEB adjudication. The PEB’s DA Form 199 reflected application of the VASRD analogous 5003 code for rating the bilateral tibial stress fractures together at 0%. Using the same coding pathway, the VA likewise declined to rate each leg separately, but instead assigned a 10% combined rating. The Board noted that there was no documentation of limitation of motion of the ankles or knees to support a compensable rating under relevant joint motion codes (5271, 5260, and 5261). Members debated if 0% was warranted for each leg or if application of §4.40 (functional loss) or §4.59 (painful motion) justified separate 10% ratings. The Board also carefully considered the option of rating both tibial stress fractures together, noting that the VA also declined to rate each leg separately. The Board concluded that the evidence did not provide sufficient grounds for recommending separate leg disability ratings in this case, and that a bilateral rating of 10%, coded 5099-5003, is a good analogy to both the pathology and disability. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the bilateral lower extremity condition, coded 5099-5003.


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 chronic leg pain due to bilateral tibial stress fractures was operant in this case and the condition was adjudicated independently of that policy by this Board. In the matter of the chronic leg pain due to recurrent bilateral tibial stress fractures condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. 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 his prior medical separation:

CONDITION
 VASRD CODE RATING
Chronic Leg Pain Due to Recurrent Bilateral Tibial Stress Fractures 5099-5003 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131117, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record



 XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXXXXXXX , AR20150014335 (PD201302562)


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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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