RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01099
BRANCH OF SERVICE:  Army	BOARD DATE:  20150331
SEPARATION DATE:  20061217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Intelligence Analyst) medically separated for chronic bilateral lower leg pains.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “bilateral leg pain, bilateral shin splints, right tibial stress fracture” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other condition(s) (adjustment disorder with anxious mood, personality disorder NOS, and vocal cord dyskinesia) for PEB adjudication.  The Informal PEB adjudicated bilateral lower leg pains as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “My condition is not improving.  Adjustment disorder, anxiety, gunshot wound.  Conditions not improving and may be part of the nerve disorder group.  Maybe time of separation caused anxiety and problems in adjustment.”

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 20060911	VA* - (~3 and 5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Lower Leg Pains…	5099-5022	0%	Chronic Shin Splints, Right Lower Extremity 	5299-5262	0%	20070308	
			Chronic Shin Splints, Left Lower Extremity	5299-5262	0%	20070308	
Adjustment Disorder with Anxious Mood	Not Unfitting	Adjustment Disorder with Anxious Mood (also Claimed as Anxiety)	9435-9440	30%	20070531	
Personality Disorder	Not Unfitting	No Diagnosis	20070531	
Vocal Cord Dyskinesia	Not Unfitting	Vocal Cord Dysfunction - NSC	6599-6521	0%	20070305	
Other x 0 (Not In Scope)	Other x 4 	
RATING:  0%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20070724 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Bilateral Lower Leg Pains Condition.  The narrative summary (NARSUM) noted onset of bilateral leg pain and pain with bending the knees during basic training.  Bone scan performed on 15 December 2005 documented bilateral shin splints, likely old right mid-tibial stress fracture and proximal tibial stress reactions.  Follow-up bone scan on 19 January 2006 documented interval improvement of the shin splints and progressive healing of the right tibial stress fracture.  Bilateral leg pain was described as muscle tightness from 1-7/10 that lasted all day.  Pain was aggravated by activity and relieved by rest and topical treatment with wrapping.  The CI was on no medications and there was no longer nighttime awaking due to pain.  The NARSUM exam stated “Knees: Full Ranges of Motion, stable; Ankles:  Full Ranges of Motion, Stable; No anterior tibial tenderness or edema.”

At the VA Compensation and Pension exam performed 3 and 5 months after separation, the CI reported similar onset and history of her shin splints.  Pain was described as intermittent twice a day for 5 hours up to 5/10.  The CI reported less “than full movement.”  Exam documented a normal gait with symmetric leg lengths.  There was mild tenderness to the distal tibias (closer to the ankle) without swelling or inflammation.  Bilaterally there was full knee range-of-motion (ROM) (0-140 degrees) and full ankle ROM (dorsiflexion 20 degrees/plantar flexion 45 degrees) without pain, weakness, tenderness, effusion, or instability.  There was no decrease on motion with repetition (DeLuca criteria).  Lower extremity motor, reflex and sensory exams were normal.  No additional radiographs were obtained due to pregnancy.  The diagnoses were chronic bilateral shin splints with a healed fibula stress fracture.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coding of 5099-5022 was analogous to periostitis which is clinically equivalent to shin splints.  The PEB disability description stated indicated full motion of the contiguous joints (knees/ankles) and that the rating was for motion.  However, the CI had abnormal imagining for each leg and code 5022 applies the criteria of 5003 which indicates a 10% rating for involvement of two or more major joints.  There were no periods of incapacitation for the 20% rating and no objective evidence of painful motion for individually rating either knee, ankle, or lower leg separately.  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 chronic bilateral lower leg pains condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that adjustment disorder with anxious mood, personality disorder, and vocal cord dyskinesia were 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 Anxious Mood, Personality Disorder.  IAW DoDI 1332.38, E5 (in effect at the time), adjustment disorder and personality disorder are conditions or circumstances not constituting a physical disability.  These conditions are therefore not ratable or compensable, and so no additional disability ratings are recommended.

Vocal Cord Dyskinesia.  The CI complained of shortness of breath, cough and upper nose congestion.  She was diagnosed with vocal cord dyskinesia and the Board considered to potential overlap with her adjustment disorder and anxious mood.  The vocal cord condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  At the prior to separation VA exam the CI reported a history of a cough and nasal obstruction, but that she currently felt fine.  She had slight shortness of breath on occasion and had no hoarseness or difficulty swallowing.  Exam documented a normal throat, neck and nasal exam including normal laryngoscopy (visualizing the cords by a laryngeal fiber optic instrument and by a laryngeal mirror).  The VA diagnosis was normal laryngeal and nasal function with no permanent residual or chronic disability.  The vocal cord condition was reviewed and considered by the Board.  There was no performance based evidence from the record that the vocal cord dyskinesia condition 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 vocal cord dyskinesia condition 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.  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 chronic bilateral lower leg pains condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5022 IAW VASRD §4.71a.  In the matter of the contended adjustment disorder with anxious mood, personality disorder and vocal cord dyskinesia conditions, the Board unanimously agrees that it cannot recommend them for additional disability rating.  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 her prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic Bilateral Lower Leg Pains… 	5099-5022	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB									

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20150013315 (PD201401099)

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:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA