RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00310
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20061206

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Motor Transport Operator) medically separated for bilateral shin splints.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for an Medical Evaluation Board (MEB).  Closed stress fracture of tibia [bilateral] was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated bilateral tibial stress fractures as unfitting, rated 0% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION: His bilateral shin condition continues to worsen.  He was not evaluated for low back pain.  His 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 condition outside the Board’s defined scope of review (such as the additional low back condition cited in the contention) and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military 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 20060926	VA* - (~7 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Tibial Stress Fractures	5022	0%	Bilateral Shin Splints	5299-5262	
0%
	20070618	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4	
RATING:  0%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20070727 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The PEB combined the right and left tibial conditions as a single unfitting condition, coded 5022 (Periostitis) and rated 0%.  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 may be permissible under the VASRD 5003 rating requirements, 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 DES or be found unfit because of physical disability.

Bilateral Tibial Stress Fracture (fx) Condition.  According to service treatment records and the MEB narrative summary the CI had a history of bilateral anterior lower leg pain since 2001 following a run.  The CI was placed on an L2 profile limiting activity and subsequently deployed multiple times.  A bone scan 1 July 2003 showed severe bilateral stress reactions of the tibiae and a healing stress fx of the right tibia.  Repeat bone scan 19 December 2003 noted persistence of the bilateral tibial stress reactions, but healing of the right tibial stress fx, and mild stress reactions of the bilateral knees and feet.  Notes in the STR indicated the CI continued to be treated by physical therapy for bilateral shin pain.  Testing for lower extremity exertional compartment syndrome was negative and the CI was referred to orthopedics with bilateral shin pain.  Eventually the pain increased to the point that the CI felt he could no longer perform effectively, but he was found fit by an MOS Medical Review Board on 24 January 2006.  The CI attempted to fulfill his duties within the limits of his profile, but was unable to do so due to the bilateral shin pain.  The CI was given a permanent L3 profile and an MEB was initiated.

All profiles in record from 13 December 2005 to the date of separation noted recurrent tibial stress fxs and profiles from 27 July 2006 noted recurrent bilateral tibial stress fxs.  The commander’s statement implicated stress reactions of both legs as impairing the CI’s successful performance of the duties of his MOS.

At the MEB narrative summary (NARSUM) examination dated 08 September 2006, 3 months prior to separation, the CI reported bilateral shin pain.  The MEB NARSUM exam noted tenderness to palpation (TTP) of the lower legs, with normal strength sensation, and reflexes.  Physical therapy evaluation on 8 September 2006 noted ankle pain with ROM and reduced ROM due to the bilateral stress reactions.  Right ankle dorsiflexion was 10 degrees (normal 20) with pain and left ankle dorsiflexion was 5 degrees with pain.  Right ankle plantar flexion was 45 degrees (normal 45) and without pain and left ankle plantar flexion was 40 degrees without pain.

At the VA Compensation and Pension (C&P) General exam dated 18 June 2007, 7 months post-separation, the CI reported chronic bilateral shin pain aggravated by weight bearing activities and use of over the counter medication as needed.  The exam noted normal gait and balance and there was no TTP, swelling, or deformity of the lower legs.  Bilateral tibia/fibula X-rays were normal.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the bilateral tibial conditions 0%; the PEB coded as 5022 (Periostitis) and the VA, 5299-5262 (Tibia/fibula impairment).  The Board first considered if each lower leg condition remained separately unfitting as established above when de-coupled from the combined PEB adjudication.  The Board noted that both tibial conditions were permanently profiled; the commander’s statement implicated both tibial conditions as impairing duty performance; and, the CI was treated for bilateral shin pain and bone scans noted bilateral tibial stress reactions.  The Board readily concluded that there was not a preponderance of evidence of the service records that overcame the Board’s presumption that the each tibial condition was reasonably considered separately unfitting.  The Board then considered its rating recommendation for the unfitting tibial conditions at the time of separation.  The evidence for coding and rating the right and left tibial conditions at separation is essentially identical and therefore both conditions are considered together in the Board’s ratings deliberations.

The Board agreed that the evidence at the MEB exam supports a 10% rating for the right and left tibial conditions as a bilateral condition, coded as 5022, for imaging evidence of periostitis of both lower legs, without evidence of occasional incapacitating exacerbations.  The Board reviewed to see if a higher rating for either or both tibial conditions was supported under 5022 and agreed that a 10% rating for each of the leg conditions was warranted based on limitation of ankle motion due to the periostitis conditions (pain with ankle dorsiflexion noted on the MEB exam).  No higher rating than a 20% combined rating is available coded according to 5003 (Degenerative arthritis) rating criteria (as is 5022).  The Board next reviewed 5262 (Tibia/fibula impairment) rating criteria which are subjective with 10% for `mild’, 20% for `moderate’ and 30% for `severe’ knee or ankle disability.  The Board deliberated whether the C&P exam supports a 0% rating at separation, noting that both tibial conditions improved significantly after removal from the physical demands of the military lifestyle.  However, the Board judged that the MEB exam had the greater probative value for its rating recommendation for the disability at the time of separation.  Member consensus was that a 10% rating for each tibial condition was also supported for impairment of the tibia with mild ankle disability, but that the benign exam at the post-separation C&P exam precluded characterizing the disability due to either tibial condition as `moderate’.  The Board thus determined that the evidence supports a 10% rating for each tibial condition and there was no path to a higher rating, and chose to code each condition 5022.  After due deliberation, considering all of the evidence the Board recommends an unfit right tibial condition and a unfit left tibial condition, rated 10% each, both coded 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.  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 tibial conditions, the Board unanimously recommends a disability rating as follows: an unfitting right tibial condition and an unfitting left tibial condition, each rated 10%, both coded 5022 IAW VASRD §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:

CONDITION	VASRD CODE	RATING	
Right Tibial Stress Fracture Condition	5022	10%	
Left Tibial Stress Fracture Condition	5022	10%	
RATING (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140109, 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 XXXXXXXXXXXXXXXXXXXXXXXX, AR20160001810 (PD201400310)

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:

CF: 
(  ) DoD PDBR
(  ) DVA