RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02872
BRANCH OF SERVICE:  ARMY  	SEPARATION DATE:  20061127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, medically separated for chronic bilateral femoral and tibial stress fractures (with both X-ray and bone scan evidence), right second and third metatarsal stress fractures; with a disability rating of 10%.  

CI CONTENTION:  The CI has asked for consideration of all conditions. The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20060915	VARD - 20070523	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Femoral and Tibial Stress Fractures (with Both X-Ray and Bone Scan Evidence), Right Second and Third Metatarsal Stress Fractures...	5099-5003	10%	Patellafemoral Syndrome, Stress Fracture Femur and Tibia, Left	5024-5260	10%	20070130	
			Stress Fracture, Tibia and Femur, Right	5299-5262	0%	20070130	
			Bilateral Pes Planus and Hallux Valgus (Claimed as Bunions), Stress Fracture of 2d Toe	5280-5276	10%	20070130	
Bilateral Flat Feet	Not Unfitting					
Right Foot Bunion	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  
	
Bilateral Femoral and Tibial Stress Fractures, Right Second and Third Metatarsal Stress Fractures Condition.  The service treatment record (STR) supplemented and substantiated the Medical Evaluation Board (MEB) consultation dated 1 June 2006 and the MEB narrative summary (NARSUM) dated 28 July 2006.  The CI noted a 3-year history of bilateral thigh, bilateral leg and right foot pain.  The NARSUM indicated the CI sustained a series of stress fractures, the first of which was of the right second metatarsal in April 2003 while in basic training.  Following immobilization with casting and physical therapy, the CI returned to training.  After the final 25-mile road march, the CI complained of pain in the left hip and legs; stress changes of the left femur and lower extremity were present on radiographic studies.  However, X-rays of the left femoral shaft were normal in October 2003.  In spite of pain in the right lower extremity, the CI deployed and had occasional flare-ups of bilateral lower extremity pain.  In August 2005, the CI had pain in the right foot and X-rays showed possible stress changes in the old fracture sites.  Bone scan results in July 2005 showed fusiform areas of uptake in both femurs, especially on the left consistent with stress fractures and follow-up demonstrated improvement in the femurs, which was confirmed by normal X-rays.  X-rays of the right foot in August 2005 showed a healed fracture in the mid second metatarsal and a questionable lateral mid shaft periosteal reaction.  By September 2005, a bone scan showed marked improvement in the femurs.  Another report in September 2005 demonstrated a mild stress reaction of the tibias and femurs as well as probable overuse versus early degenerative change of the left midfoot (not in scope) with mild right plantar fasciitis  (see below).  

Orthopedic evaluation indicated overuse/stress fracture of the bilateral lower extremities.  In April 2006 the CI had bilateral shin pain.  Treatment consisted of naproxen (a nonsteroidal anti-inflammatory drug (NSAID)), rest, ice and elevation, and an extended profile.  X-rays of the legs were normal in May 2006.  An orthopedic examination in June 2006 showed no significant tenderness over the thighs, knees, or legs.  The range of motion (ROM) measurements of the hips and knees were normal without pain; the knees were stable bilaterally; and the ROM of the right ankle was normal. At the NARSUM examination the CI indicated the pain in his extremities was diffuse and varied from a mild ache to a sharp, stabbing, shooting pain with a severity of 2/10 (10 being the worst pain) to 9/10 with prolonged walking, standing, sitting, impact activities, and weight bearing making it worse.  In May 2007 the CI was trained for use of orthotics and a 7mm heel lift for the right heel was recommended. 
 
For the MEB examination, the CI reported on DD Form 2807-1 dated 6 June 2006, a broken right foot in 2003 and multiple stress fractures of the legs since then.  The MEB physical examiner noted on a DD Form 2808 dated 26 June 2006, a full ROM of the knees without effusions or instability and a full ROM of the feet bilaterally with a normal non-antalgic gait.  The examiner recorded the diagnosis as chronic bilateral lower extremity stress fracture/chronic pain.  The commander’s statement indicated the CI could not be deployed and listed his profile limitations; however, the commander recommended retention of the CI for a job with minimal impact on his legs.  A permanent L3 profile was issued in August 2006 with restrictions of all functional military activities except wearing a protective mask and chemical defense equipment.  Additional restrictions included no running, no jumping, no ruck marching, no climbing, no lifting greater than 50 pounds, no standing in formation longer than 20 minutes without a 5-minute rest, and no wearing of a rucksack and Kevlar armored vest.  An alternate physical fitness test was authorized.  

At the VA Compensation and Pension (C&P) examination dated 30 January 2007, performed 2 months after separation, the CI reported suffering from pain in the legs for 4 years with a severity of 5-/10.  The pain was from the right foot to the right thigh and in the left thigh.  Treatment consisted of an NSAID as needed and no functional impairment resulted from the condition.  On examination leg length on the left was 93 cm and 94 cm on the right.  The CI used no assistive device for ambulation.  The right tibia and fibula as well as the left tibia and fibula were normal.  Bilateral knees and ankles were normal on examination with normal ROMs.  There was tenderness of the right and left feet with pes planus (see below).  X-rays of the tibia and fibula bilaterally were within normal limits as were the feet except for hallux valgus bilaterally.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5099-5003 for chronic bilateral femoral and tibial stress fractures and right second and third metatarsal stress fractures.  The VA assigned a 10% rating using code 5024-5260 (Leg limitation of flexion) for the patellofemoral syndrome, stress fracture femur and tibia, left and it assigned a 0% rating using code 5299-5262 (Tibia and fibula impairment) for stress fracture, tibia and femur, right.  The Board sought a route to a higher rating.  

Board Approach to PEB Consolidated Rating.  The PEB combined the bilateral femoral and tibial stress fractures and right second and third metatarsal stress fractures conditions under a single Service disability rating, coded analogously to 5003.  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 reasonably justified as separately unfitting in order to remain eligible for 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 evidence for each condition was presented above.  If Board members determine by performance based fitness criteria that the condition is reasonably justified as separately unfitting and is separately ratable; IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended.  IAW DoDI 6040.44 the combined rating for the conditions determined to be separately unfitting and ratable may not be lower than the single disability rating from the PEB.  

The Board first considered if bilateral femoral and tibial stress fractures, right second and third metatarsal stress fractures were reasonably justified as separately unfitting.  Members agreed  that the evidence supports that the functional limitations of the right lower extremity stress fractures and left lower extremity stress fractures could be reasonably justified as separately  unfitting; therefore, separate rating are recommended.  In this case, both right and left lower extremities were profiled, considered to fail retention standards, and implicated by the NARSUM and in the commander’s statement.  Members agreed that each lower extremity is separately unfitting and that identical coding and ratings are applicable.  The challenge in rating this case is that there were multiple bones in the lower extremities that had stress fracture changes.  The analogous code 5099-5022 (Periostitis) fits closely with the stress fractures and a 10% rating for the left lower extremity and a 10% rating for the right lower extremity is reasonable.  To rate each bone separately, however, would raise a potential pyramiding issue IAW VASRD §4.14, which is to be avoided.   Alternative rating options based on the CI’s clinical status at the time of separation include the use of analogous code 5262 (Tibia and fibula impairment) for slight malunion at 10% for each leg or less likely use of analogous code 5255 (Femur impairment) for slight malunion at 10% for each femur.  A route to a 20% rating for either the right lower extremity or the left lower extremity could not be achieved in the absence of a moderate disability.  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 lower extremity (femoral and tibial stress fractures, right second and third metatarsal stress fractures) condition and a disability rating of 10% for the left lower extremity (femoral and tibial stress fractures) condition.

Contended PEB Conditions-Bilateral Flat Feet and Right Foot Bunion.  The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral flat feet and right foot bunion conditions 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.  The bilateral flat feet and right foot bunion conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  

Bilateral Flat Feet Condition.  A note dated 16 September 2005 indicated the CI had a consultation for pes planus with a history of stress fractures of the right second and third metatarsal bones.  The CI complained of occasional pain in the right foot (second metatarsal shaft) during running.  On examination flattened medial arches completely disappeared with weight bearing and the too many toes sign (only the fifth toe and half of the fourth toes are seen with a posterior tibial tendon dysfunction with a flatfoot deformity) of both feet was noted.  There was no tenderness to palpation of both feet.  Treatment consisted of orthotics (dual density Amfits) and toe spacers.  The NARSUM examination indicated the CI had correction of the arches when he performed heel raises.  X-rays showed mild pes planus of the left foot.  At the MEB examination the CI reported foot pain in both feet; the right more common, and he used orthotics because of flat feet.  The MEB examiner circled severe pes planus severe and symptomatic on DD Form 2808.  At the VA C&P examination the CI indicated he had pain for 4 years, but the pain seemed to be focused in the right foot (site of metatarsal fractures).  There was no functional impairment resulting from the condition.  On examination there was slight tenderness of the right and left feet plantar surfaces.  Weight bearing X-rays of the right and left feet were normal.   

Right Foot Bunion Condition.  A note dated 16 September 2005 indicated the CI had a consultation for pes planus.  On examination there was a right hallux abducto valgus (bunion) with a dorsomedial bunion without tenderness to pressure and no pain with the hallux (large toe) ROM.  In July 2006 the CI had pain for 3 years in his right foot bunion.  Toe spacers helped somewhat; pain occurred in boots.  The NARSUM examination revealed a mild dorsomedial bunion without tenderness to palpation of the right hallux and no pain with the ROM of the hallux.  At the VA C&P examination the CI had right great toe pain and there was no functional impairment resulting from the condition.  A hallux valgus (bunion) was present on X-rays bilaterally.

The aforementioned was reviewed and considered by the Board.   There was no performance based evidence from the record that the bilateral feet and right foot bunion conditions 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 any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the right lower extremity (femoral and tibial stress fractures, right second and third metatarsal stress fractures) condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5022 IAW VASRD §4.71a.  In the matter of the left lower extremity (femoral and tibial stress fractures) condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5022 IAW VASRD §4.71a.  In the matter of the contended bilateral flat feet and right foot bunion conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

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	
Right Lower Extremity  (Femoral and Tibial Stress Fractures, Right Second and Third Metatarsal Stress Fractures)	5099-5022	10%	
Left Lower Extremity  (Femoral and Tibial Stress Fractures)	5099-5022	10%	
COMBINED	20%	

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

AR20160007943, 

Dear:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability. I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation. This will not result in any change to your separation document or the amount of severance pay. A copy of this decision will be filed with your Physical Evaluation Board records. I regret that the facts of the case did not provide you with the
outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application,.

Sincerely,