RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01499
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060512

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (General Construction Equipment Operator) medically separated for a right tibia stress fracture.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The CI’s profile did allow for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “right tibia stress fracture, chronic” to the Physical Evaluation Board (PEB) as not meeting retention standards IAW AR 40-501.  The MEB also forwarded “partial left ureter pelvic junction obstruction” and “adjustment disorder with anxiety and depressed mood” as both meeting retention standards.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “right tibia stress fracture, chronic…without neurologic abnormality” as unfitting, rated 0%.  The PEB found the ureter pelvic obstruction and adjustment disorder conditions as not unfitting and not ratable.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI made no contention.  The CI’s complete submission is at Exhibit A.  

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. In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:    

 IPEB - Dated 20060413	VA* - (~7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Tibia Stress Fracture	5099-5022	0%	Closed Chronic Stress Fracture, Right Tibia	5099-5022	10%	20061128	
Adjustment D/O	Not Unfitting	Adjustment D/O with Mixed Anxiety and Depressed Mood	9440	30%	20061128	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 7	
RATING:  0%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20070124 (most proximate to date of separation [DOS]).  
VARD 20090624 decreased DC 9440 to 0% effective 20090901.  VARD 20140306 increased DC 9440 to 10% effective 20130415.

ANALYSIS SUMMARY:   

Right Tibia Stress Fracture.  The service treatment record documented the CI’s right leg pain began after he stepped in a hole while playing flag football during physical training (PT).  After the incident, he was able to continue playing and had no difficulty with ambulation; however, the following morning he fell out during a PT run secondary to pain.  He was transported to the emergency department and diagnosed with an ankle sprain.  The CI subsequently deployed to Alaska and there he was re-diagnosed with plantar fasciitis.  He was referred to podiatry and physical therapy with a diagnosis of rule out compartment syndrome.  The CI continued to have pain and was next referred to orthopedics and was found to have chronic stress fractures.  His condition was treated conservatively with medications, including narcotics which helped, and physical therapy; however, he continued to report recurrent leg pain with activities.    Radiographs of the right lower extremity showed no evidence of fracture, dislocation or other significant bone abnormality.  There was evidence of good healing of a focal stress fracture at the distal shaft of the tibia.  Bone scan demonstrated healing or sub-acute stress fracture of the right mid-tibia. The narrative summary (NARSUM) dated 27 December 2005, 5 months prior to separation, documented the CI’s history and noted that due to his ongoing recurrent symptoms, he is unable to perform the duties required of his MOS.  Physical examination of the right lower extremity recorded normal skin and color, and mild tenderness along the medial border of the tibia.  There are no masses or swelling, and range-of-motion (ROM) was recorded as full.  Motor strength was 5/5 and there was no evidence of neurovascular compromise.  The physician noted the CI was unable to participate in the physical training required to pass a physical fitness test and could not perform the duties of his MOS.  Right tibia stress fracture, chronic was diagnosed and pain was rated as minimal and occasional.  At an evaluation with pain medicine on 8 February 2006, 3 months prior to separation, the CI reported his pain is located in the right shin and at times travels to the medial knee area.  The pain is made worse by standing and any physical activity that involves weight bearing.  His pain is improved with sitting, resting, and medications, and the pain interferes with his ability to sleep.

The VA general Compensation and Pension (C&P) examination, approximately 7 months after separation, documented the CI was working full-time and had not lost any time due to his leg pain.  The CI reported he used to exercise 5 days a week with weight lifting and cardio workout but has not done any of this over the last month secondary to his busy work and school schedule. At the C&P joints exam accomplished on the same day of the general exam, the CI noted his work is not affected by his leg condition, and he does not take any medications.  Physical examination of the right leg documented tenderness over the distal medial anterior tibial region without swelling or redness, or pain on motion.  The examiner documented ankle ROM dorsiflexion of 0 degrees (20) and plantar flexion of 30 (45) degrees.  Knee ROM demonstrated 130 degrees bilaterally.  

The Board directed attention to its rating recommendation based on the above evidence.   The PEB rated the condition at 0%, coded analogously 5099- 5022 (periostitis).  Likewise the VA rated the condition under the same coding scheme but granted a 10% coded evaluation for painful or limited motion.  Conditions rated under this code, are rated on limitation of motion of affected parts.   Therefore, a compensable rating under the 5022 code requires objective evidence of painful or limited motion of a major joint or group of minor joints.  The record demonstrated that the CI reported he had pain with weight bearing activities and his profile noted he could not participate in alternate PT.   The record documented no episodes of swelling, giving way, but his profile supports the assumption of loss of function.  Pain on motion was not documented in the NARSUM or C&P examination.  The Board agreed that the record sufficiently documented pain; however, preponderance of evidence did not support a compensable rating under code 5022, or under any ROM code.  The Board unanimously agreed the right extremity condition did rise to a level of compensability under §4.40.  Thereupon, 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 right leg pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the adjustment disorder with anxiety and depressed mood condition was 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.  

Adjustment Disorder with Anxiety and Depressed Mood.    The Board first reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the Disability Evaluation System (DES).  The evidence of the available records showed the diagnosis of adjustment disorder with anxiety and depressed mood as being made consistently during processing through the DES. The Board acknowledged the recording of an “anxiety” diagnosis on the MEB physical exam (DD Form 2808); and Board members agreed the recorded condition is not independent of the adjustment disorder as anxiety without a specifier is not a DSM-IV diagnosis.  The Board determined that a/no mental health diagnosis was changed in the disability evaluation process, and therefore, this applicant did/ did not appear to meet the inclusion criteria in the Terms of Reference (TOR) of the Mental Health Diagnosis Review Project.

The Board next considered whether any mental health condition was unfitting for continued military service, regardless of specific diagnosis.  The memorandum from the psychiatrist in the outpatient clinic noted his condition of adjustment disorder with anxiety and depressed mood was treatable and he could deploy and was mission capable from a mental health perspective.  The psychiatrist noted a psychiatric addendum to his MEB was not necessary.  The Board noted that at the time of separation the diagnosis of adjustment disorder was not a physical disability and therefore, was not ratable IAW DoDI 1332.38.  The adjustment disorder condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that any mental health condition significantly interfered with satisfactory duty performance.  The Board therefore concluded that there was insufficient evidence that any mental health condition rose to the level of being unfitting at the time of separation and therefore none were subject to service disability rating.  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.

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 right tibia stress fracture condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5022 IAW VASRD §4.71a, and §4.40.  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	
Right Tibia Stress Fracture, Chronic	5099-5022	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130910, 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 XXXXXXXXXXXXXXXXXXXX, AR20150018701 (PD201301499)

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:

CF: 
(  ) DoD PDBR
(  ) DVA