RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00046
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060804

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Medical Specialist) medically separated for a chronic left leg condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “left tibia diaphyseal stress fracture” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (bilateral carpal tunnel syndrome, iatrogenic hypothyroidism due to Graves disease and hearing loss) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “chronic pain, left leg due to tibial stress fracture” as unfitting, rated 10% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  
The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant contends for multiple conditions to include spider bites, hearing loss, migraines, vertigo, nerves, PTSD, depression and anxiety.  Her 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 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 20060517	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Leg	5099-5003	10%	Peripheral Neuropathy LLE	Not Service Connected	20061108	
Hearing Loss	Not Unfitting	Hearing Loss, Right Ear	6100	0%	20061026	
Other MEB/PEB Conditions x 2 (Not In Scope)	Other x 15 	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20070427 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Pain Left Leg Condition.  The CI was initially treated for left knee pain which began after she fell out of a truck onto her locked knee.  She was treated with medications and a brace, but her pain continued.  An emergency room note dated 23 November 2005 documented an antalgic gait (abnormal secondary to pain), and crepitus (a grinding sensation or sound), but an otherwise unremarkable examination including X-rays.  She was treated with medications and physical therapy without benefit.  She also noted that her pain had been aggravated by new shoes.  She had been issued crutches for partial weight-bearing without complete resolution of her pain.  A bone scan on 8 December 2005 showed bilateral stress fractures of the tibiae (shinbones), left worse than the right, as well as stress changes of the right ankle.  When seen on 5 January 2006, she reported a 60% improvement in her pain, but persistent symptoms with stairs.  Repeat x-rays of the left tibia on 13 January 2006 confirmed the stress fracture.  She was unable to complete her training as a combat medic secondary to ongoing pain and entered into the MEB process.  At the MEB examination, the CI reported that her physical complaints all arose in training.  The MEB physical examination only noted that she had a left tibial stress fracture.  The narrative summary (NARSUM) was dated 10 March 2006.  The CI stated that her left leg pain began gradually in basic training and that it was now aggravated by all impact activities (these include running, jumping, etc.)  She had tenderness over the mid-tibia on the left, but an otherwise unremarkable examination.  She was thought to have a stable stress fracture of the mid-tibia.  It was thought that she would improve with continued light duty, but be at risk for recurrence and separation was recommended.  At the VA Compensation and Pension (C&P) examination performed on 8 November 2006, 3 months after separation, the CI reported that she had progressed to walking with only a cane, vice crutches, by July 2006 and now could walk without either a cane or crutches.  On examination, her posture and gait were normal.  Her stress fracture was thought to be healed and she had a normal examination without pathology.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the left tibial stress fracture at 10%, coded 5099-5003 (analogous to degenerative arthritis), with probable application of the pain policy.  The VA determined that the condition was resolved and therefore not service connected.  No rating was assigned, but the code 5262 (impairment of the tibia and fibula) was employed.  Stress fractures are associated with overuse and almost always resolve with a reduction in activity.  Such was the case here.  The CI showed improvement while on active duty, had progressed to use of a cane from crutches by a month prior to separation, and had a normal examination 3 months after separation.  The Board found no avenue to a rating higher than the 10% adjudicated by the PEB.  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 chronic left leg pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hearing loss 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.  The hearing loss carried an H2 profile, but was not implicated in the commander’s statement or judged to fail retention standards.  It was reviewed and considered by the Board.  While there was some worsening of the hearing in the lower frequencies, the accession examination recorded that the CI had also an H2 profile at accession.  It was also determined to be an EPTS (existed prior to service) condition by the MEB and the evidence shows right ear surgery and hearing loss following a car accident in 1990, 15 years prior to accession.  There was no performance based evidence from the record that it 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 hearing loss and so no additional disability rating is 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, probable PEB reliance on the USAPDA pain policy for rating the left leg pain was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the chronic pain left leg condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hearing loss condition, the Board unanimously recommends no change from the PEB determination 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 20131225, 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 XXXXXXXXXXXXXXXXXXXXXX, AR20160000331 (PD201400046)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA