RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00638
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20071130 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Advanced Welder) medically separated for bilateral shin splints.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “sprain of unspecified site of knee and leg” condition was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition of “other acquired deformities of ankle and foot” for PEB adjudication.  The Informal PEB adjudicated “bilateral shin splints” as unfitting, rated 10% with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition as well as one additional condition detailed in the chart below was determined to be not unfitting Category III. (Not separately unfitting and not contributing to the unfitting condition)  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant makes no specific contention in his application.  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 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 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 20070925	VA* - ~4 Months Pre-Separation 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Shin Splints	5022-5003	10%	Right Knee Degenerative Joint Disease with Shin Splints	5262	10%	20070807	
			Left Knee Degenerative Joint Disease with Shin Splints	5262	10%		
Bilateral Radiographic Hallux Valgus
Deformity	Not Unfitting, Cat III	Bunion Right Foot	5280	0%		
		Bunion Left Foot	5280	0%		
Hypertension	Not Unfitting, Cat III	Hypertension	7101	0%		
Other x 0 (Not In Scope)	Other x 13 	
RATING:  10%	COMBINED RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20080717 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  Bilateral Shin Splints

On 3 April 2006 the CI presented with a 2 day history of bilateral leg pain.  There was no history of trauma and X-ray evaluations were normal.  A diagnosis of shin splints was rendered.  The CI was treated with physical therapy and activity modification.  The narrative summary (NARSUM) documented a bone scan performed 28 April 2006 consistent with bilateral shin splints.  At the NARSUM examination the CI reported decreased leg pain with cessation of running and prolonged standing.  On physical examination there was increased tenderness to palpation of the tibia bilaterally.  At the VA Compensation and Pension examination performed four months before separation, the CI reported shin pain with physical activity.  The pain was relieved by pain medication.  On physical examination there was a normal gait and tenderness to palpation of the tibia and fibula bilaterally.  

The Board directed its attention to its rating recommendation based on the above evidence.  
The PEB rated the bilateral shin splint condition under a single Service disability rating of 10%, coded 5022-5003 (Periostitis-degenerative arthritis). VA rated each leg at 10%, coded 5262 (tibia and fibula impairment of).  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single Service disability rating must be reasonably justified as separately unfitting in order to remain eligible for Service rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. In this case a bilateral condition resulted in limited duty, was determined to fail retention standards, and implicated in the commander’s statement.  Members agreed that each leg was separately unfitting and that identical coding and ratings are applicable.  Board members determined that the subjective reports of pain with use and objective physical findings support a 10% rating for each leg IAW VASRD § 4.40 (functional loss).  There was no avenue to a higher than 10% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board determined that each leg was separately unfitting and recommends a disability rating of 10% for each lower extremity shin splints condition.  

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 shin splint condition, the Board unanimously determined that each leg was separately unfitting and recommends a disability rating of 10%, 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	
Left Shin Splints	5022	10%	
Right Shin Splints	5022	10%	
COMBINED (w/ BLF)	20%	

Voting Options:
1) No Rechat

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140127, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 16 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 22 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 28 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 21 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX 

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (f) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
       
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)