Search Decisions

Decision Text

AF | PDBR | CY2014 | PD-2014-02228
Original file (PD-2014-02228.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2014-02228
BRANCH OF SERVICE: Army  BOARD DATE: 20150416
SEPARATION DATE: 20090617


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Water Treatment Specialists) medically separated for bilateral shin splints. 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 “bilateral refractory shin splints” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded nine other conditions (see rating chart below) for PEB adjudication. The Informal PEB adjudicated the bilateral shin splints as unfitting citing application of §4.40 of the Veterans Affairs Schedule for Rating Disabilities (VASRD), rated 10% “bilaterally” indicating each shin was rated separately as unfitting, and combined at 20% under a single code. The remaining conditions, with the exception of adjustment disorder were determined to be not unfitting; adjustment disorder is a condition not constituting a physical disability IAW DoDI 1332.38, Enclosure 5. The remaining conditions, with the exception of adjustment disorder were determined to be not unfitting ; adjustment disorder is a condition not constituting a physical disability IAW DoDI 1332 38, ENCL 5. The CI made no appeals and was medically separated.


CI CONTENTION: “Please consider all conditions.”


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 20090306
 VA* - (~1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Shin Splints… 5099-5002 20% Shin Splints Left 5262 10% 20090513
Shin Splints Right 5262 10% 20090513
Mild Obstructive Sleep Apnea Not Unfitting Obstructive Sleep Apnea 6847 50% 20090513
Deviated Nasal Septum Not Unfitting Deviated Nasal Septum… 6502 0% 20090513
Allergies Not Unfitting Allergic Rhinitis 6522 0% 20090513
Enuresis Not Unfitting Enuresis 7599-7542 NSC 20090513
Palpitations Not Unfitting No VA Placement
Knee Pain Not Unfitting Bursitis Left Knee 5019-5260 0% 20090513
Posttraumatic Stress Disorder Not Unfitting Posttraumatic Stress Disorder with Depression (Also Claimed as Adjustment Disorder with Anxiety; Dysthymic Disorder) 9411 30% 20090513
Dysthymic Disorder Not Unfitting
Adjustment Disorder Does Not Constitute a Physical Disability
Other x 0 (Not In Scope)
 Other x 1
RATING: 20%
 RATING: 70%
* Derived from VA Rating Decision (VA RD ) dated 20 091009 (most proximate to date of separation [ DOS ] ) .
Note: The VARD dated, 20090326, was for Vocational Rehabilitation; therefore, the VARD dated, 20091909 was used for the Rating Comparison.


ANALYSIS SUMMARY:

Bilateral Shin Splints Condition. The narrative summary (NARSUM) examiner noted that the CI had a 2-year history of severe pain in both his shins after running that was diagnosed as shin splints. Since he was unable to run due to increased pain, he was given a profile, and had remained on the profile for the 2 years leading up to the MEB. The CI took anti-inflammatory and narcotic medication and participated in physical therapy, but noted little improvement; he noted pain with most activity relieved only by rest. The CI was given a prescription for a wheelchair in an effort to completely rest his shin splints in order to improve his functional capacity. He started using the wheelchair in August 2008 (2 months prior to NARSUM) and completed 6 week therapy course with noted improvement only while resting in the chair. At the NARSUM dated 14 October 2008, the CI reported he was using the wheelchair approximately 50% of the time; he did not use it at home, but did use it when leaving home. He noted his pain was 3/10 intensity at rest and increased to 8/10 with flare-ups. Physical examination documented a muscular built with lower extremity strength of 5/5, and no evidence of atrophy. He was able to heel and toe walk without pain or difficulty. The examiner documented that bone scan performed in June 2006 showed bilateral shin splints and no stress fracture. There were no radiographic evidence or imaging in the year prior to separation. There was one documented range-of-motion (ROM) recording for the left knee only that recorded flexion of 120 degrees (NL-140), dated 22 December 2008. The CI had reported left knee gives way and pain.

The VA Compensation and Pension (C&P) examination, a month prior to separation recorded absence of Deluca (no loss of motion with repetition due to fatigue, incoordination, or lack of endurance) and painful motion bilateral lower extremity. Left knee ROM recorded flexion to 120 degrees; right knee ROM was not recorded. The CI had a normal gait, and there was no evidence of locking, giving way, or instability in the lower extremity. There was no indication that the CI had continued to require the use of a wheelchair, and it was noted that he did not use any ambulatory device. The PEB and VA chose different coding options for the condition, but this did not bear on rating. The PEB’s DA Form 199 indicates that each knee was rated separately for functional loss, citing application of VASRD §4.40 (functional loss) to achieve a minimal compensable rating, coded analogously 5099-5003. The VARD reflects a minimum compensable rating for the left and right shin splints for painful motion, coded 5262 (Impairment of tibia and fibula). The Board also considered all applicable coding options (5257, 5258, 5260, and 5262), but could find a pathway to a rating higher than a minimal compensable rating for each knee (or a combined 20% under the 5003 code). 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 the mild obstructive sleep apnea, deviated nasal septum, allergies, enuresis, knee pain, palpitations, adjustment disorder, posttraumatic stress disorder (PTSD) and dysthymic disorder were not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The Board first considered the evidence for the not unfitting mental health (MH) conditions listed above. Treatment records were not available for review; however, a psychiatric NARSUM dated 6 February 2009, 4 months prior to separation, documented the CI had two deployments and was seen in the restoration and resilience clinic periodically for depressive and anxiety symptoms. He reportedly refused psychotropic medications and had brief engagement with a therapist. His most recent exposure to MH was in the context of marital problems. The CI noted he had anxiety attacks that began during his first deployment and was seen in the emergency room in September 2007 for symptoms of anxiety (2 years prior to separation). His reported symptoms of PTSD included hypervigilance, avoidance behaviors (crowds and stores), and social isolation. No specific deployment related trauma exposure was identified. The mental status examination documented the CI’s report of a “sad and optimistic” mood and the examiner assessed his affect as full range and not congruent with his reported mood. All other aspects of the examination were normal. The examiner noted that the evaluation was limited by the CI’s reported history of anxiety and sadness, “yet he appeared jovial, amiable, and easy to engage.” He denied that depressive or anxiety symptoms had affected his ability to perform his duties in the military and the examiner stated his PTSD symptoms had a relatively mild effect on his occupational functioning. The examiner assessed PTSD, chronic without mention of stressor, and dysthymic disorder. A Global Assessment of Functioning score of 68 (mild) was recorded. The psychiatrist opined that the CI’s MH symptoms were not impairing for military service, and that he met retention criteria with regards to his diagnoses. With the exception of the sleep apnea, none of the contended conditions were profiled. The Board also observed that none of the contended conditions, including sleep apnea were implicated in the commander’s statement or judged to fail retention standards. Although the sleep apnea was profiled (P2), there were no duty related restrictions recorded in the profile. Additionally, there was no performance based evidence from the record that any of these conditions 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 any of the contended conditions 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. 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 unanimously recommends no change in the PEB adjudication. In the matter of the contended mild sleep apnea, deviated nasal septum, allergies, enuresis, adjustment disorder, palpitations, knee pain, PTSD and dysthymic 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 20140516, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record




XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX, AR20150014955 (PD201402228)

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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

Similar Decisions

  • AF | PDBR | CY2014 | PD-2014-01099

    Original file (PD-2014-01099.rtf) Auto-classification: Approved

    Post-Separation)ConditionCodeRatingConditionCodeRatingExam Chronic Bilateral Lower Leg Pains… 5099-50220%Chronic Shin Splints, Right Lower Extremity 5299-52620%20070308Chronic Shin Splints, Left Lower Extremity5299-52620%20070308Adjustment Disorder with Anxious MoodNot UnfittingAdjustment Disorder with Anxious Mood (also Claimed as Anxiety)9435-944030%20070531Personality DisorderNot UnfittingNo Diagnosis20070531Vocal Cord DyskinesiaNot UnfittingVocal Cord Dysfunction -...

  • AF | PDBR | CY2013 | PD2013 02098

    Original file (PD2013 02098.rtf) Auto-classification: Denied

    The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130. It was thus concluded that the Board’s rating recommendation should also default to 5293, and all members agreed that the 60% criteria under that code are not supported by the evidence. 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...

  • AF | PDBR | CY2014 | PD-2014-03210

    Original file (PD-2014-03210.rtf) Auto-classification: Approved

    The Board determined that cervical flexion not greater than 30 degrees documented at the VA examination mostly closely approximated the CI’s functional limitations at the time of separation and met the criteria for a 20% disability rating.After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic cervical strain condition. In the matter of the left lower extremity pain (knees and...

  • AF | PDBR | CY2012 | PD2012-00394

    Original file (PD2012-00394.pdf) Auto-classification: Denied

    Knee ROM Flexion (140⁰ Normal) Extension (0⁰ Normal) Comment PT ~7 Mo. Symptoms included ankle popping (predominately right); shin pain knees pop and can swell; with “knees and ankles are stiff and weak and his legs can give out.” The examiner stated “He has generalized and multiple symptoms regarding the lower extremities and it is difficult to sort them out specifically on taking the history.” The examiner indicated there was no foot condition; there was bilateral shin pain and right...

  • AF | PDBR | CY2012 | PD-2012-00410

    Original file (PD-2012-00410.pdf) Auto-classification: Denied

    Bilateral Leg Pain Condition. On examination, he was noted to have normal ROM and that there was no tenderness. 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 5299‐5237 5099‐5022 5299‐5276 COMBINED 10% 10% ‐‐‐ 20% MEMORANDUM FOR Commander, US Army Physical Disability Agency 5 PD12‐00410 Low Back Pain Bilateral Leg Pain Bilateral Pes Planus The...

  • AF | PDBR | CY2012 | PD2012-00086

    Original file (PD2012-00086.docx) Auto-classification: Approved

    All evidence considered, the Board recommends that each knee be separately adjudicated as unfitting, coded 5299-5260 and rated 10% each IAW VASRD §4.71a. In the matter of the right and left knee condition (patellofemoral syndrome), the Board unanimously recommends a separate disability rating of 10% for each knee, coded 5299-5260 IAW VASRD §4.71a. I concur with that finding, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a...

  • AF | PDBR | CY2012 | PD-2012-01524

    Original file (PD-2012-01524.txt) Auto-classification: Approved

    RATING COMPARISON: Service IPEB – Dated 20020722 VA – All Effective Date 20030829 Condition Code Rating Condition Code Rating Exam Bilateral Chronic Shin Splints 5022 0% Chronic Shin Splints, Left Leg 5299-5262 10% STR* Chronic Shin Splints, Right Leg 5299-5262 0% STR* Combined: 0% Combined: 10% *No C&P examination completed ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System (DES) fitness determinations and...

  • AF | PDBR | CY2012 | PD2012 01512

    Original file (PD2012 01512.rtf) Auto-classification: Denied

    The leg, hipand knee conditions, characterized as “bilateral shin splints,” “right tibial plafond stress reaction,” “bilateral femoral stress reactions,” and “left greater trochanteric bursitis & PFPS [patellofemoral pain syndrome],” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. Bilateral Leg PainCondition (includes Bilateral Shin Splints,Bilateral Femoral Stress Reactions, Left Greater Trochanteric Bursitis, and Left PFPS) :The narrative summary, 4 months...

  • AF | PDBR | CY2009 | PD2009-00520

    Original file (PD2009-00520.docx) Auto-classification: Denied

    The CI did not appeal the case, and was thus medically separated with a 10% combined disability rating. The Board considered any additional lower extremity disability contributed from bilateral pes planus and healed stress fracture of the right tibia in rating the CI’s unfitting shin splint conditions. In the matter of the bilateral shin splints condition, the Board unanimously recommends that each leg be separately adjudicated as follows: an unfitting right shin splint condition, coded...

  • AF | PDBR | CY2011 | PD2011-00390

    Original file (PD2011-00390.docx) Auto-classification: Denied

    The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation. As for the permanent disability rating, the Board noted that at the time of the VA C&P evaluation the CI had no complaints of tibial pain. In the matter of the right and left tibial stress fracture conditions, the Board unanimously recommends an initial TDRL rating of 10% for each coded 5262; and a 0% permanent rating for each at 6 months IAW VASRD §4.71a.