RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	 	CASE:  PD-2014-01456
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20141008
SEPARATION DATE:  20040819

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (Basic Trainee) medically separated for bilateral leg pain.  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 condition was listed by the MEB was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “bilateral leg pain, due to stress fractures” as unfitting, rated 0%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The conditions leave the Veteran with physical and mental limitations.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting bilateral leg condition is addressed below.  In addition, the CI was notified by the Service that his case qualifies for review of his mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012, and whose MH diagnoses were unfavorably changed or eliminated during that process.  In response to said notification, it is presumed that the CI has elected review by this Board for the MH condition.  Accordingly, the case file was reviewed regarding unfavorable diagnosis change, fitness determination, applicability of VASRD §4.129, and rating (via §4.129 or §4.130 as appropriate) of the MH condition adjudicated as not unfitting.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040712	VA -  based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Leg Pain…	5022	0%	Residuals Stress Fractures of Tibias	5299-5022	0%	STR	
No MH Conditions in MEB/PEB	Major Depressive Disorder	9434	Not Service Connected	
Combined:  0%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20041221 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Bilateral Leg Condition.  The narrative summary (NARSUM) performed on 18 May 2004, noted that the CI developed pains in her legs at the latter part of basic training.  She reported that her knees began to hurt at the onset of Advanced Individual Training performed on 29 January 2004.  She was unable to run, walk fast for any distance without worsening pain.  Pain was worse in the morning, worse with going up and down stairs and with squatting and bending.  Pain ranged from 2-6 on a scale of 1-10, but did not disturb her sleep.  Medications did not help and she was unable to perform any of the aerobic functions of the Army physical fitness test.  During physical examination, she did not appear in distress, but examination of knees and legs revealed tenderness along the tibial joint line and shin bilaterally.  There was slight tenderness underneath the patellar tendon, but no sensory or vascular abnormalities, nor swelling of the legs or knees.  The examiner noted she failed to meet retention standards.  She received a L3 profile for bilateral leg pain.  Imaging revealed normal X-ray of the right leg on 13 February 2004 and bone scan performed on 2 March 2004 revealed small right mid tibial shaft stress fracture and early bilateral medial tibial plateau stress fractures.  The CI failed to report for her VA Compensation and Pension (C&P) examination.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB combined the two leg pain conditions into a single unfitting condition characterized as: “Bilateral leg pain,” due to stress fractures without limitation of motion, coded 5022 and rated at 0%.  The VA bundled the two leg conditions as “Residual stress fractures of tibias” and assigned a rating of 0%.  The Board evaluated whether or not it was appropriate for the two leg problems to be “bundled” together.  The Board must determine if the PEB’s approach of combining the conditions under a single rating was justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the VASRD.  If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each “unbundled” condition was separately unfitting.  After due deliberation, the Board determined that the evidence does not support a conclusion that each of the leg, separately, would have rendered the CI unable to perform her required military training.  Accordingly, the Board does not recommend a separate disability rating for each leg.  It is appropriate for the two legs to be bundled together and treated as a single unfitting condition.

The Board determined that the most appropriate diagnostic code for the chronic leg pain condition was 5022 (analogous to periostitis).  There was no compensable leg limitation of motion.  There was object evidence of pain, reports of pain with use and radiographic evidence of bilateral stress fractures.  IAW VASRD §4.40 (Functional loss), a part of the musculoskeletal system which becomes painful on use must be regarded as seriously disabled.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and VASRD §4.7 (higher of two evaluations), the Board recommends a disability rating of 10% for the chronic bilateral leg pain, due to bilateral tibial stress fractures.

Mental Health Review.  MEB History and physical examination performed on 18 May 2004 listed major depressive disorder (MDD) and medications included Trazodone 100 mg for sleep and Zoloft 25 mg at bedtime.  Medication profile on 24 June 2004 listed the last admission diagnosis as adjustment disorder with depressed mood and documented the above described prescriptions with the addition of Mirtazapine 15 mg June 2004.  A C&P examination for mental disorders was not available because the CI did not report for the examination.  A psychiatric NARSUM addendum was on record.  The MEB did not list a MH diagnosis and none was forwarded to the PEB.  The VARD noted that STRs showed she was treated May 2004 for depression with suicidal ideation with no subsequent treatment notes.  A MH referral was made and she was scheduled for a VA examination, but she did not report.

All available evidence was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that depression significantly interfered with satisfactory duty performance.  There were no MH records.  No MH condition was profiled and the commander’s statement did not implicate a MH condition.  The NARSUM and VA examiners did not render an Axis I diagnosis.  The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the DES.  The evidence of the available records shows diagnoses of MDD was rendered during processing through the DES.  The MDD diagnosis was recorded on the physical examination for the MEB, but not among any other documents.  The Board acknowledged the MDD diagnosis, but there was insufficient evidence for the diagnosis and therefore, was not listed on the MEB, therefore, not forwarded to the PEB.

The available STRs did not reflect evidence for a MDD diagnosis; specifically, there was no evidence that the applicant ever met Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnostic criteria for MDD.  Although the diagnosis of MDD was eliminated to the applicant’s possible disadvantage during the DES process, the Board concluded there was insufficient evidence to support the diagnosis and therefore, it was appropriately not adjudicated by the PEB.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that in the absence of a mental health diagnosis there was insufficient cause to recommend a fitness determination for any MH condition and so no additional disability ratings are 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 bilateral leg pain due to stress fractures condition, the Board unanimously recommends a disability rating of 10%, coded 5022 IAW VASRD §4.71a.  In the matter of the MH review, the Board unanimously agrees no MH diagnoses were changed to the CI’s possible disadvantage and therefore, cannot recommend an 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:

UNFITTING CONDITION	VASRD CODE	RATING	
Bilateral Leg Pain, Due to Stress Fractures Condition	5022	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140321, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXX, AR20150007682 (PD201401456)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA