RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1300110
BRANCH OF SERVICE:  Army	BOARD DATE:  20130514
SEPARATION DATE:  20030310

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV1/E-1 (19K/Armor Crewman) medically separated for chronic bilateral lower extremity pain, due to left femoral shaft stress fracture and right femoral shaft stress reaction.  CI sustained injuries during a physical training run around 8 October 2002, and was placed on 30 days of convalescent leave.  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 lower extremity pain condition characterized as medically unacceptable and was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB. The PEB adjudicated chronic bilateral lower extremity pain as unfitting, rated 0% citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated with a 0% disability rating.

CI CONTENTION:  “was rushed through system and never looked at my back witch has been constant pain since serving and my main complaint that was somehow? on stress fracture ”

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 rating for the unfitting chronic lower extremity pain condition is addressed below.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in his 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 20030213	VA - Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Lower Extremity Pain	5099-5003	0%	Left Femoral Stress Fracture	5299-5014	10%	STR	
			Right Femoral Stress Fracture	5299-5014	10%	STR	
No Additional MEB/PEB Entries		
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030315 (most proximate to date of separation [DOS])   

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that certain improprieties may have occurred while the Army was processing his case.  It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in regard to suspected Service improprieties.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB fitness and rating determinations, based on severity at the time of separation.

Bilateral Leg Pain.  In October 2002, the CI developed pain in both thighs.  A bone scan revealed a stress fracture of the left femoral shaft, and stress reaction of the right femoral shaft.  He was treated with conservative measures, including physical therapy and rest.  However, the leg pain persisted and an MEB was initiated.  Physical examination of the thighs on 10 January 2003 showed no edema (swelling), erythema (redness), ecchymosis (bruising), effusion, or tenderness to palpation.  The hips and knees were unremarkable.

The Board carefully reviewed all evidentiary information available.  The PEB combined the two leg pain conditions into a single unfitting condition characterized as: “chronic bilateral lower extremity pain, due to left femoral shaft stress fracture and right femoral shaft stress reaction.”  The condition was coded 5099-5003, and rated at 0%.  The VA unbundled the two leg conditions, and assigned a rating of 10% to each leg, resulting in a combined rating of 20%.  The Board evaluated whether or not it was appropriate for the two legs to be “bundled” together.  The Board must determine if the PEB’s approach of combining the conditions under a single rating was reasonably justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD).  However, if the Board judges that two or more separate ratings are warranted, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself.  The key issue therefore was whether a compensable evaluation could be granted for the right (less severe) leg.  After due deliberation, the Board determined that the evidence did not support a conclusion that the right leg pain, separately, would have rendered the CI incapable of performing his required military duties; and, accordingly cannot recommend a separate disability rating for right leg pain.  It is reasonably justified for the two legs to be bundled together and treated as a single unfitting condition.

The Board directs its attention to the left (worse) leg.  Since there was no loss of motion, the leg condition was essentially non-compensable based solely on VASRD §4.71a.  However; IAW VASRD §4.40 (functional loss), when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  After due deliberation, and based on a thorough review of the service treatment record (STR), the Board determined that a disability rating of 10% was warranted.  The Board tried to find a path to a higher rating, using other codes which could be applied to the leg pain condition.  The other VASRD codes that were considered did not result in a rating higher than 10%, since the STR did not show sufficient evidence of a disabling leg abnormality which would justify a rating higher than 10%.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a separation disability rating of 10% for the chronic bilateral leg pain.  It is appropriately coded 5099-5022 (analogous to periostitis), and IAW VASRD §4.40 and §4.71a, meets criteria for the 10% rating level.

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 was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the bilateral lower extremity pain, the Board unanimously recommends a disability rating of 10%, coded 5099-5022, IAW VASRD §4.40 and §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:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic bilateral lower extremity pain	5099-5022	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130012158 (PD201300110)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA