RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02768
BRANCH OF SERVICE:  Army	BOARD DATE:  20150605
SEPARATION DATE:  20050613

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Trainee) medically separated for bilateral lower leg conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for an Medical Evaluation Board (MEB).  Unresolved lower extremity stress fracture pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated bilateral tibial stress fractures as unfitting, rated 0% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 Veterans Affairs Schedule for Rating Disabilities (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 20050601	VA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Tibial Stress Fractures…Lower Legs & Feet	5099-5003	0%	No Claim Filed	
Other MEB/PEB Conditions x 0 (Not In Scope)		
RATING:  0%	NONE	

ANALYSIS SUMMARY:

Bilateral Tibial Stress Fracture.  Treatment records evidence that the CI sustained a left ankle injury in September 2004.  The injury was initially diagnosed as an ankle strain and treated conservatively.  X-ray evaluation in October 2004 revealed an avulsion fracture at the anterior distal fibula and placed in a CAM walker.  At an orthopedic evaluation dated 21 October 2004 the examiner noted mild tenderness to palpation at the anterior fibula and a palpable defect at the fracture site.  A diagnosis of subacute left fibula fracture was rendered.  At the DD Form 2808, Report of Medical Examination, 2 months prior to separation, the CI reported activity modification and anti-inflammatory medication.  The CI continued to report bilateral lower extremity pain.  A bone scan performed on 4 February 2005 demonstrated bilateral knees, tibial, and foot stress fractures.  The stress fractures were treated with activity modification and anti-inflammatory medications.  A repeat bone scan in April 2005 demonstrated improvement of the tibial stress fractures, no change in the knees, and worsening of the feet.  The CI was referred to the MEB.  The MEB narrative summary (NARSUM) examination, also 2 months prior to separation noted “unresolved stress fracture of the chronic bilateral plantar fasciitis (inflammation of the lining of the foot).”  The examiner noted that the CI used anti-inflammatory medication for pain.  The physical examination evidenced full range-of-motion (ROM) of the knees, right ankle, and all toes.  There was evidence of decreased left ankle ROM, pain with motion and ambulation, and mild tenderness on palpation of the tibia and left lateral ankle.  A diagnosis of unresolved lower extremity stress fracture pain noted was rendered.  There was no VA claim for disability compensation filed.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the “bilateral tibial stress fractures manifested as pain in the lower leg and feet” as a single unfitting condition, rated 0% with cited application of the USAPDA pain policy, and coded 5099-5003 (Analogous to Degenerative arthritis).  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 disability rating must be found 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.

The Board first considered whether the bilateral tibial stress fractures could be reasonably justified as separately unfitting.  The tibial stress fractures were profiled and implicated in the commander’s statement.  The Board determined that the each leg could be reasonable justified as separately unfitting.  The Board then considered rating the condition.  The Board noted that radiographic evidence demonstrated stress fracture improvement with activity modification, there was no limitation or painful motion, and mild tenderness on the MEB NARSUM examination.  The Board determined that the radiographic evidence of stress fractures and reports of pain with use met criteria for a 10% rating for each leg IAW VASRD 4.40 (Functional loss) and coded 5003.  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 right tibial stress fracture and 10% for the left tibial stress fracture.

The Board then considered whether the bilateral feet stress fractures could be reasonably justified as separately unfitting.  The bilateral feet stress fractures were profiled and implicated in the commander’s statement.  The Board determined the each foot stress fracture was reasonable justified as separately unfitting.  The Board then considered rating the condition.  The Board noted that the radiographic evidence demonstrated worsening of the stress fracture even with activity modification, subjective reports of pain with ambulation, and mild left ankle tenderness on the MEB NARSUM examination.  The Board considered VASRD codes 5003 (Degenerative arthritis), 5279 (Metatarsalgia), 5284 (Foot injuries other), and 5299-5276 (Analogous to Flatfoot, acquired).  Board members agreed that the 5276 criteria description of pain with use and on manipulation most closely approximated the CI’s clinical and functional presentation for a single 10% rating.  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 bilateral foot stress fractures condition.  The 10% criterion for VASRD code 5276 only allows a bilateral rating.

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.  As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating “bilateral tibial stress fractures manifested as pain in the lower leg and feet” was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the bilateral tibial stress fractures condition, the Board unanimously agreed that each leg was separately unfitting and recommends a disability rating of 10% for each leg, coded 5003 IAW VASRD §4.71a.  In the matter of the bilateral feet stress fracture condition, the Board unanimously agreed that each foot was separately unfitting; however, based on code 5299-5276 bilateral criterion the Board recommends a disability rating of 10% 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:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Tibial Stress Fracture	5003	10%	
Left Tibial Stress Fracture	5003	10%	
Bilateral Feet Stress Fractures	5299-5276	10%	
RATING (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140527, 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 AR20160003758 (PD201402768)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA