RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02527
BRANCH OF SERVICE:  Army	BOARD DATE:  20150723
SEPARATION DATE:  20071120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Metalworker) medically separated for back pain and bilateral leg pain.  These conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Chronic low back pain” and “bilateral hip pain and shin splints” (the latter being listed as one diagnosis) were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other medically acceptable condition, adjustment disorder with anxiety, for PEB adjudication.  The Informal PEB (IPEB) adjudicated “mechanical low back pain…” and “bilateral lower extremity pain…” as unfitting, rated 10% and 0%, respectively, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The adjustment disorder was determined to be not compensable.  The CI initially appealed to the Formal PEB (FPEB), but then withdrew his request and was medically separated.

CI CONTENTION:  The CI requests the Board consider all conditions.  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 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 20070824	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
…Low Back Pain…	5237	10%	Lumbosacral Strain	5237	20%	20080327	
			Left Hip Sprain	5255	20%		
			Right Hip Condition	5255	NSC		
Bilateral Lower Extremity Pain Due to Shin Splints	5099-5022	0%	Left Shin Splints	5099-5024	NSC		
			Right Shin Splints	5099-5024	NSC		
Adjustment Disorder w/ Anxiety	Not Compensable	PTSD	9411	NSC		
		Adjustment Disorder w/ Anxiety	9440	NSC		
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 6 	
COMBINED RATING:  10%	COMBINED RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20080410 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  An orthopedic examiner on 3 May 2007 (7 months prior to separation) reported that the CI was experiencing some low back pain (LBP) for which he had received no treatment.  Exam showed a normal gait and spinal curvature, and no muscle spasm.  Paraspinal lumbar tenderness was present.

The narrative summary (NARSUM) on 14 May 2007 (6 months prior to separation) reported back pain with prolonged sitting or standing.  The CI had difficulty lifting, and the pain radiated to the hips.  Examination showed thoracolumbar flexion of 90 degrees (normal to 90 degrees) and combined range-of-motion (ROM) of 240 degrees (normal 240 degrees).  All measurements were performed three times.  The exam was silent regarding gait, spinal contour, muscle spasm, tenderness or painful motion.

At the MEB exam on 27 June 2007 (5 months prior to separation) the CI reported no specific history of injury.  The MEB physical exam noted lumbar muscle spasms, tenderness, and sacroiliac joint tenderness.  Gait and spinal contour were not mentioned.  At a physical therapy (PT) evaluation the same day the CI complained of LBP without radiation.  Examination noted that he did not appear uncomfortable, and that he used crutches (for a different problem) but displayed a normal gait without them.  His trunk ROM was considered normal, although it was not measured.  Pain occurred at the end range of flexion, and was relieved with extension.  There was no tenderness.

At the VA Compensation and Pension (C&P) exam on 27 March 2008 (4 months after separation), the CI reported he could walk less than a block without pain in the low back, and could not do any lifting, pushing or pulling.  Examination showed that he could get on and off the examining table and turn from side to side easily.  There was no guarding or muscle spasm, but lower lumbar tenderness was present.  Thoracolumbar flexion was 50 degrees and combined ROM was 160 degrees.  It was noted that the CI did “not complain of any pain during these motions, nor does he complain of pain at these extremes of motion.”  Repetitive motion was not reported.  Lumbar spine X-rays were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), while the VA rated the condition 20% under the same code.  The Board agreed that the respective ratings by the PEB and the VA were appropriate based on the available examination and ROM data (i.e. 10% for muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour; and 20% for flexion greater than 30 degrees but not greater than 60 degrees).  In assigning probative value to the conflicting ROM examinations in evidence, the Board noted that: (1) the MEB measurements were consistent with corroborating evidence (for example “normal” gross ROM observation by PT); (2) there was not a reasonable accounting for progressively impaired ROM in the interval between the examinations; and, (3) the probative value of the VA evaluation was judged to be compromised by the lack of explanation for the limitation of motion, since painful motion was specified as absent and there was no mechanical limitation (e.g. surgical fusion).  Therefore, based on all evidence and associated conclusions just elaborated, members agreed that preponderant probative value should be assigned to the service evaluations.  Those examinations, as previously noted, supported a 10% rating.  There was no evidence of muscle spasm or guarding severe enough to result in abnormal gait or spinal contour; thus, the next higher 20% rating was not warranted on this basis.  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 mechanical LBP condition.

Bilateral Lower Extremity Pain Diagnosed as Shin Splints.  The PEB combined right and left shin splints under a single disability rating, coded analogously to 5022 (periostitis).  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for service rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.

The CI presented in August 2006 with complaints of right shin and ankle pain.  There was no history of injury, but overuse from running was thought to be a contributing factor.  Nuclear medicine testing (bone scan) showed findings consistent with bilateral shin splints.  The CI presented again in 8 March 2007 (8 months prior to separation), this time noting left shin pain for 24 hours which began while running.  There was no mention of ankle pain or right shin pain.  Another bone scan confirmed bilateral shin splints and a right tibial stress fracture.

The NARSUM (6 months prior to separation) noted a chief complaint that included chronic bilateral shin splints, but the exam was silent regarding leg findings.  The examiner rendered a diagnosis of “bilateral hip pain and shin splints.”  The CI reported to an orthopedist on the same day as the NARSUM that he experienced problems with shin splints during his prior term of service in the Marines; however he was pain free once he separated from the service.

At the MEB exam (5 months prior to separation) the CI denied impaired use of legs, or foot or knee trouble.  A PT examiner on the same day observed a normal gait and noted that ROM was normal in both lower extremities.  The profiling section of the DD Form 2808, Report of Medical Examination, did not identify shin splints as a diagnosis.  The commander’s statement on 10 July 2007 (4 months prior to separation) noted physical limitations imposed in part by pain from his shins.

At the VA C&P exam (4 months after separation), the CI complained of pain in both shins.  He could reportedly kneel, squat and stoop without much difficulty.  Examination showed a limp on the left leg, although the cause of that limp was not specified.  There was no tenderness of either shin.  Knee ROM was normal bilaterally (0-140 degrees).  Left ankle motion was normal, but right ankle dorsiflexion was 0 degrees (normal 20 degrees) and plantar flexion 30 degrees (normal 45 degrees).  The examiner rendered a diagnosis of “status post stress fractures” of the tibias, and stated that restricted right ankle ROM was due to chronic ankle sprain.  There was no indication in the report of a current shin condition.

The Board directed attention to its rating recommendation based on the above evidence.  As previously elaborated, the Board must first consider whether right and left shin splints remain separately unfitting, having been de-coupled from a combined PEB adjudication.  Bilateral shin splints were implicated in the commander’s statement and identified on the permanent profile.  The Board members agreed that, as isolated conditions, each shin splint condition would have rendered the CI incapable of continued service within his MOS, and accordingly each condition merits separate service ratings.  Coding and rating features were logically identical.  The VA cited lack of evidence of a chronic condition as a rationale for not service-connecting shin splints.  The Board agreed that examination findings did not provide support for a compensable rating on the basis of §4.40 (functional loss) or §4.59 (painful motion).  Limitation of motion of the ankles or knees under relevant joint motion codes (5271, 5260, and 5261), and rating under the 5003 coding pathway for two major joints, were also considered.  Although the VA examiner noted decreased ROM of the right ankle, this finding was not linked to shin splints, and there was no limitation of motion in the knees or the other ankle.  The Board therefore concluded that a rating higher than 0% was not justified for either shin splint condition on the basis of limitation of motion.  The absence of X-ray findings of bilateral joint arthritis likewise rendered a 10% bilateral rating unwarranted.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for the right lower extremity pain diagnosed as shin splints condition, coded 5099-5022, and 0% for the left lower extremity pain diagnosed as shin splints condition, coded 5099-5022.

Bilateral Hip.  The PEB’s DA Form 199 specified that the bilateral hip pain could not be separately rated because it was “considered as part of the back pain rating.”  Although the PEB subsumed hip pain under the low back condition, Board members noted that the NARSUM and MEB did not regard the hip pain in this way.  The Board therefore considered if the bilateral hip pain condition was separately unfitting.  Should the Board judge that the bilateral hip condition was most likely incompatible with military service, a service disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

An orthopedic evaluation on 3 May 2007 (7 months prior to separation) reported bilateral hip pain for several months, located laterally and posteriorly; severity of the left was greater than right.  Examination showed a normal gait and non-painful hip rotation bilaterally.  Magnetic resonance imaging of the hips was unremarkable.

The NARSUM (6 months prior to separation) noted a chief complaint that included chronic hip pain.  The pain reportedly developed while he was on crutches for treatment of the right leg stress fracture that began in March 2007.  Pain severity was 5-6/10.  Examination showed hip flexion of 125 degrees bilaterally (normal 125 degrees), extension 0 degrees (normal 20 degrees) and abduction 45 degrees (normal 45 degrees).  All measurements were performed three times.  The examiner rendered a diagnosis of “bilateral hip pain and shin splints.”

An orthopedic evaluation on the same day as the NARSUM recorded a complaint of bilateral hip pain.  Examination showed bilateral hip tenderness and painful motion.  ROM in all planes was recorded as “normal” bilaterally.  The permanent profile included “chronic hip pain.”  At the MEB exam (5 months prior to separation), the CI reported constant hip pain that was worse with activity.  The physical exam noted bilateral hip tenderness.  An examination by PT on the same day noted a normal gait and full ROM of the hips, with painful motion reported at the extremes of internal rotation.  The commander’s statement reported that the CI’s hip pain was a constant 5/10 in severity, and that he was unable to kneel or squat.  An emergency room evaluation was performed on 27 September 2007 (2 months prior to separation) for right shoulder and left hip pain caused by a fall.  Exam showed “mild pain” with left hip ROM.  There was no mention of right hip pain.

At the VA C&P exam (4 months after separation), the CI complained of pain in the left hip.  There was no mention of any right hip issues.  Walking less than a block caused left hip pain, but he could reportedly kneel, squat and stoop without much difficulty.  Examination showed a limp on the left leg, but the source of this limp was not specified.  Left hip flexion was 120 degrees, extension 30 degrees, abduction 30 degrees and external rotation 30 degrees (normal 45 degrees).  Pain occurred at extremes of motion.  The examiner rendered a diagnosis of chronic sprain of the left hip.  There was no diagnosis of a right hip condition.

The Board directed attention to its recommendation based on the above evidence.  Bilateral hip pain was forwarded by the MEB and implicated in the commander’s statement and the permanent profile.  The Board agreed that, as an isolated condition, the left hip pain condition would have rendered the CI incapable of continued service within his MOS, and accordingly merits a separate service rating.  Regarding the left hip pain condition, Board members considered the limitation of extension of 0 degrees on the MEB exam, which supports a 10% rating under the 5251 code.  However this measurement was not consistent with any other examiner’s observations, including that of an orthopedist on the same day.  The Board concluded therefore that evidence did not support the presence of compensable limitation of extension, or of other limited hip motion under applicable codes (5252, 5253).  However, the Board agreed there was sufficient evidence of painful motion to support a 10% rating IAW §4.59.  The 5255 code (impairment of femur) was considered to be clinically inapplicable in this case.  Regarding the right hip condition the Board majority concluded that as an isolated condition it would have rendered the CI incapable of continued service within his MOS, and accordingly merits a separate service rating.  However, there was insufficient evidence of limitation of motion, functional loss, or painful motion to warrant a rating higher than 0%.  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 left hip condition, coded 5099-5021 (myositis), and a disability rating of 0% for the right hip pain condition, coded 5099-5021.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that adjustment disorder with anxiety was not compensable but could be administratively unfitting.  The adjustment disorder is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending it as unfitting.  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 the contended 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 mechanical low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral lower extremity pain due to shin splints condition, the Board unanimously recommends that it be rated for two separate unfitting conditions as follows:  right lower extremity pain diagnosed as shin splints condition coded 5099-5022 and rated 0%; and left lower extremity pain diagnosed as shin splints condition coded 5099-5022 and rated 10%; both IAW VASRD §4.71a.  In the matter of the bilateral hip pain condition, the Board by a majority vote recommends that it be rated for two separate unfitting conditions as follows:  left hip pain condition coded 5099-5021 and rated 10%; and right hip pain condition coded 5099-5021 and rated 0%; both IAW VASRD §4.71a.  In the matter of the contended adjustment disorder with anxiety conditions, the Board unanimously recommends no change from the PEB determination as not compensable.  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	
Mechanical Low Back Pain 	5237	10%	
Right Lower Extremity Pain Diagnosed as Shin Splints	5099-5022	0%	
Left Lower Extremity Pain Diagnosed as Shin Splints	5099-5022	0%	
Left Hip Pain	5099-5021	10%	
Right Hip Pain	5099-5021	0%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140531, 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 XXXXXXXXXXXXXXXXXX, AR20160002813 (PD201402527)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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