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AF | PDBR | CY2013 | PD-2013-02790
Original file (PD-2013-02790.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02790
BRANCH OF SERVICE: Army  BOARD DATE: 20150113
SEPARATION DATE: 20080312


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92F1O/Petroleum Supply Specialist) medically separated for bilateral knee pain and left tibial stress fracture. These conditions 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 and referred for a Medical Evaluation Board (MEB). The conditions, characterized as “chronic bilateral knee pain and shin splints on the left,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded three other conditions (back pain, left hip bursitis, and asthma) for PEB adjudication. The Informal PEB (IPEB) adjudicated patellofemoral pain, bilateral knee, rated 0% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy; and the left tibial stress fracture as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions (back, left hip and asthma) were determined to be not unfitting. The CI appealed to the Formal PEB, which affirmed the IPEB’s findings and ratings. An Administrative Correction PEB was conducted which again affirmed the IPEB’s findings and ratings and the CI was medically separated.


CI CONTENTION: “My back, in the military they told me I only had back spasms and a year and a half later I was diagnosed with (AS) a spinal disease that leaves me with little to no mobility and my asthma is bad”


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 knee and left tibia conditions, and contended and not-unfitting back and asthma conditions are addressed below. The not unfitting left hip condition was not contended; and thus is not within the DoDI 6040.44 defined purview of the Board. This and any condition 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 Admin IPEB – Dated 20080321
 VA* - (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
PFPS, Bilateral Knees 5099-5003 0% PFPS, Right Knee 5257 10% 20080122
PFPS, Left Knee 5257 10% 20080122
Left Tibia Stress Fracture… 5022 0% Left Tibia Stress Fracture 5299-5262 0% 20080122
Low Back Pain Not Unfitting Lumbosacral Strain 5237 20% 20080122
Asthma Not Unfitting Asthma 6602 10% 20080122
Other x 1 (Not In Scope)
 Other x 5
Combined: 0%
 Combined: 40%
* Derived from VA Rating Decision (VA RD ) dated 200 90107
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 service 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 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 PEB combined the knees as a single unfitting condition, coded analogously to 5099-5003 and rated 0%. The PEB may have relied on AR 635.40 (B.24 f.) and/or the USAPDA pain policy for not applying separately compensable VASRD codes. 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 was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting and that there was no need for separate fitness adjudications rather than a judgment that each condition was independently unfitting. 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 Patellofemoral Pain Syndrome (PFPS). The first record in evidence for the left knee was dated 7 June 2006 and noted as secondary to the “Kevlar.” She was next seen on 14 November 2006 and noted that her pain had begun in February while deployed. She was managed with medication and duty restrictions with persistent pain. X-rays of both knees on 19 January 2007 were normal. Magnetic resonance imaging (MRI) of both knees on 15 March 2007 was also normal. Despite treatment, her knee pain persisted and she was diagnosed with bilateral PFPS. A bone scan on 13 July 2007 showed a healing stress fracture of the shin bone (tibia), but was otherwise normal (below). She was issued a permanent L3 profile and referred to an MEB. She sprained her right knee on 8 August 2007; repeat X-rays of the right knee were normal. At the MEB examination, the CI reported that she had ruptured her right knee. The examiner noted full motion, which was painful. Tenderness to palpation was present, but no effusion was noted. The Board noted that this was several weeks after she had sprained her right knee. The narrative summary (NARSUM) was dated 26 September 2007. The examiner documented that the CI had attended knee classes without benefit. On examination, the patellar grind (movement of the kneecap against the bone underneath it) was tender as were the ends of the thigh bone bilaterally. The range-of-motion (ROM) was full and no pain with motion was documented. The knees were stable without signs of meniscal (the meniscus is a cartilage cushion inside the knee) irritation.

At the VA Compensation and Pension (C&P) examination performed on 22 January 2008, 2 months prior to separation, the CI reported that she had a steroid injection in her left knee with good results and that she wore a knee brace bilaterally when she anticipated increased activity. On examination, her posture and gait were normal. The knees were normal to inspection with normal ROM and without instability or signs of meniscal irritation. Painful motion was not present. A second VA C&P was accomplished on 5 December 2008, 9 months after separation. Her gait was described as guarded, but a spine examination the same date noted that she could walk 1 to 2 miles. She reported the use of knee braces as needed. The ROM was reduced to 120 degrees of flexion bilaterally with pain at the end of motion, but the knees were stable, signs of meniscal irritation were absent, and there was tenderness along the kneecaps (patellae). Repetitive motion resulted in no further deficit. The Board first considered if the knees were separately unfitting. Both were profiled, determined to not meet retention standards, and bilateral knee pain was found unfitting. The Board did not find evidence to support a contention that one knee impaired duty more than the other. Accordingly, it determined that both could be considered separately unfitting for rating purposes.

The Board directs its attention to its rating recommendation based on the above evidence. The PEB rated the bilateral knee condition at 0% using an analogous code for degenerative arthritis, 5099-5003. The VA initially determined the knees as not service-connected as no pathology was present on examination, but then rated each at 10% using the 5 December 2008 C&P exam, coded analogously with 5257 (other impairment of the knee) citing VASRD §4.59 (painful motion). The Board noted that the X-rays, MRIs, and second bone scan were all unremarkable for pathology of the knees. Other than the second C&P, the ROM was recorded as full. Painful motion was present on the VA C&P examination, but not the others with the exception of the MEB examination, which was within weeks of an acute injury of the right knee. 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 knee condition.

Left Shin Splints. The primary care note dated 1 February 2005 shows that the CI had right shin pain for 4 weeks. She was tender over both shins and thought to have bilateral shin splints which were treated conservatively with medications, shoe supports (orthotics), and duty modifications. The X-rays were normal. A bone scan on 19 May 2005 was significant for a left shin splint and stress-related changes on the right. A repeat bone scan on 13 July 2007 showed a healing stress fracture on the left shin, but a normal examination on the right. At the MEB exam, the examiner noted that the anterior left lower leg was tender to palpation. At the NARSUM, the CI reported no pain with walking, but discomfort from impact activity. The examiner noted tenderness over the left shin.

At the VA C&P exam performed 2 months prior to separation, the CI reported daily pain in both shin areas which responded well to medications. On examination, there was no swelling or tenderness of either shin.

The Board directs its attention to its rating recommendation based on the above evidence. The PEB and VA both rated the shin splint (tibial stress fracture) at 0% using the code 5022 (periostitis) and 5299-5262 (analogous to impairment of the tibia). Neither code offers a rating advantage to the CI although 5299-5262 is a better coding choice. The Board noted that the VA examination was the most proximate examination to separation and on examination, no evidence of a persistent shin splint was still present. The Board observed that once removed from the rigors of military life, this is not an unexpected outcome. The records in evidence support that the left tibial stress fracture was no longer present, or was at least asymptomatic, at separation. 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 left stress fracture condition.

Contended PEB Conditions:

Low Back Pain (LBP) and Asthma. The Board’s main charge is to assess the fairness of the PEB’s determination that the LBP and asthma 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. Neither condition was profiled; the only conditions implicated by the commander were those profiled. Neither was judged to fail retention standards. Both were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that either condition significantly interfered with satisfactory duty performance. 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 LBP or asthma and so no additional disability ratings are 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. As discussed above, PEB reliance on the USAPDA pain policy for rating the bilateral knees was operant in this case and the conditions were adjudicated independently of that policy by the Board. In the matter of the bilateral knees PFPS and left tibial stress fracture condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended LBP and asthma 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 re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131216, 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, AR20150003925 (PD201302790)

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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