RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01355
BRANCH OF SERVICE:  Army	BOARD DATE:  20150121
SEPARATION DATE:  20040206

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1 (Multi-Channel Transmission Systems Operator) medically separated for stress fractures in his legs.  This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty although he was authorized to perform alternate physical fitness testing.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Bilateral lower extremity Grade I stress fractures and stress reactions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated bilateral lower extremity stress fractures/reactions as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I think the condition was worse than given and did not look at knee injuries during training.”

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:

Service IPEB – Dated 20040107	VA* - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Lower Extremity Stress Fractures/Reaction	5022	0%	Left Tibial Stress Fractures	5299-5260	10%	STR	
			Right Tibial Stress Fractures	5299-5260	10%	STR	
Other x 0 (Not In Scope)	Other x 0	
Combined:  0%	Combined:  20%	
*Derived from VA Rating Decision (VARD) dated 20040210 (most proximate to the date of separation (DOS))

ANALYSIS SUMMARY:

Bilateral Stress Fractures.  According to the MEB narrative summary (NARSUM), the CI developed bilateral shin pain in September 2003 during basic training.  X-rays of both shins (tibia bones) showed no fractures; however, a bone scan showed increased uptake in both shin bones consistent with stress fractures.  The CI was diagnosed with Grade I stress fractures (abnormal bone scan without fracture line on X-ray).  Despite rest, physical therapy and 30 days convalescent leave, the CI continued to report bilateral shin pain preventing resumption of training.  At the time of the MEB NARSUM examination on 20 November 2003, there was diffuse tenderness of the shins.  Examination of the knees and ankles was normal.

There was no VA Compensation and Pension (C&P) examination proximate to separation (the first VA C&P examination was over 5 years after separation).

The Board directed attention to its rating recommendation based on the above evidence.  The VA granted a separate 10% rating for each the left and right tibial stress fracture (coded 5299-5262) based on the service treatment records.  The PEB adjudicated the bilateral shin splints condition to code 5022 (periostitis) without limitation of motion and assigned a single 0% rating.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints is permissible under the VASRD 5003 rating guidelines (which apply to 5022 for rating), and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.

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.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the Disability Evaluation System (DES) or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.

The Board first considered whether each the right and left shin splint conditions remained separately unfitting, having de-coupled them from a combined PEB adjudication.  Available service records and examinations summarized above reflected symptoms of both right and left shin splint conditions without distinguishing between the sides.  The Board concluded that the evidence of the service treatment record reasonably supported a conclusion that each the right and left shin splint conditions standing alone would have caused the CI to be referred into the DES and to have been determined to be unfit.  The Board then considered its rating recommendation for the unfitting right and left tibial stress fractures at the time of separation.  While there was evidence of a stress fracture, there was no non-union or malunion of the tibia and no limitation of motion or functional impairment of the ankle or knee to support consideration for ratings under 5262 (impairment of tibia) or diagnostic codes for the knee or ankle.  The Board noted that the approach by the PEB using 5022 (5022 code is rated according to the 5003 guidelines) allows for rating a major joint when there is not any compensable limitation of motion based on functional loss (§4.40).  The Board concluded that there was functional loss due to right and left tibial stress fractures supportive of a 10% rating for each leg.  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 each the right and left leg lower extremity stress fractures (5099-5022).

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.  In the matter of the right lower extremity stress fracture condition, the Board unanimously recommends a separate unfitting disability rating of 10%, coded 5099-5022 IAW VASRD §4.71a.  In the matter of the left lower extremity stress fracture condition, the Board unanimously recommends a separate unfitting disability rating of 10%, coded 5099-5022 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends modifying the case determination as follows, effective the date of medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Lower Extremity Stress Fracture	5099-5022	10%	
Left Lower Extremity Stress Fracture	5099-5022	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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, AR20150009870 (PD201301355)

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 20% 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		
CF: 
(  ) DoD PDBR
(  ) DVA