RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03540
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030502

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E1, Trainee, medically separated for “bilateral tibial stress fractures,” with a disability rating of 0%.

CI CONTENTION:  “Please consider all conditions.”  The CI’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 based upon a 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 - 20030418	VARD - 20030828	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Proximal Tibial Stress Fractures	5099-5003	0%	Proximal Tibia Stress Fractures, Bilateral	5299-5262	0%	STR	
Flexible, Mild Pes Planus	Not Unfitting	Pes Planus	5276	NSC	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Bilateral Tibial Stress Fractures.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented an onset of right leg pain a month after starting basic training, with subsequent left leg pain as well.  The diagnoses by bone scan was bilateral proximal tibial stress fractures (metaphyseal/diaphyseal [near knee joint, but not joint surface]).  There was STR evidence of a persistent antalgic gait favoring the right leg.  There was ample STR documentation of normal range of motion (ROM) of all joints (without specific mention of painful motion), with no evidence to the contrary; and, there was no STR evidence for joint instability or impingement.  Surgery was not indicated; conservative treatment did not result in sufficient improvement to allow resumption of training; and, the CI was referred for an MEB which in turn forwarded “bilateral proximal tibial stress fractures” to the PEB.  

The NARSUM examination on 27 March 2003 (1 month before separation) documented bilateral leg pain, which the PEB classified as “moderate-intermittent,” prohibiting the CI’s return to training and limiting his ability to “run, jump or march.”  The physical examination recorded “mild antalgia” for the gait, bilateral proximal tibial tenderness (right greater than left), normal strength, and “normal hip, knee and ankle [ROM] ... joints are all stable on exam.”  The NARSUM examiner did not specify painless motion, but the MEB’s medical examination did.  

The L3 profile was for “bilateral tibial stress fracture,” and there was no commander’s performance statement in evidence.  The CI failed to report for a scheduled VA examination, and there was no temporally probative post-separation evidence.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s bilateral 0% rating rested on application of the USAPDA pain policy as above; but, a bilateral rating of 0% does not comport with VASRD §4.71a which confers a 10% rating under 5003 for the involvement of “2 or more major joints” without specifying a need for additional criteria.  The VA’s bilateral rating of 0%, based on the same service evidence, was analogous to code 5262 (tibia and fibula, impairment of).  That code specifies complications of fractures which were not in evidence, although analogous application might be justified.  It offers ratings for contiguous knee or ankle disability: 10% for “slight,” 20% for “moderate,” and 30% for “marked.”  It does not, however, offer bilateral rating; so, in order to comply with §4.71a, separate 0% ratings would have to have been conferred if it were judged that a minimum compensable rating could not be supported for either leg.  Members agreed, however, that the antalgic gait favoring the right leg would support application of VASRD §4.40 (functional loss) to achieve the minimum compensable rating of 10% for at least the right leg.  

Separate ratings under code 5299-5262 were considered by the Board; but members agreed that each leg was not reasonably justified as separately unfitting.  Given the pathology and clinical acuity described above, it was reasonable to conclude that the performance limitations confined to either leg alone would not have rendered the CI incapable of continuing military service; and, that more likely it was the combined effect of the bilateral condition which rendered him unfit.  Furthermore, given the absence of any ROM limitation, adequate support for painful motion, or other ratable features, it was agreed that no rating over 0% for the left leg and 10% for the right leg was supported by the evidence.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the bilateral tibial stress fractures; proposing code 5099-5022 (analogous to periostitis, defaulting to criteria of 5003) for its clinical compatibility.

Contended Pes Planus.  Mild pes planus was documented on the CI’s entrance physical.  There were no STR entries that documented any associated complaints.  The condition was captured by the NARSUM and forwarded as “flexible, mild pes planus that is asymptomatic.”  It was not profiled.  It was not service-connected by the VA, stating that it was pre-existing without evidence for service aggravation.  The Board’s main charge was to assess the fairness of the PEB’s determination that pes planus was not unfitting.  Members agreed that there was no performance-based evidence indicating that pes planus significantly interfered with duty requirements.  Members further agreed that the VA’s assessment was entirely consistent with the evidence, e.g. the condition would not be eligible for rating regardless (existing prior to service without permanent service aggravation).  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 pes planus condition; thus, it was not subject to rating.
BOARD FINDINGS:  In the matter of the bilateral tibial stress fractures and IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 10%, coded 5099-5022 IAW VASRD §4.71a.  In the matter of the contended pes planus condition, the Board unanimously recommends no change from the PEB determination 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	PERMANENT RATING	
Bilateral Proximal Tibial Stress Fracture	5099-5022	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140721, 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, AR20160017506  (PD201403540)

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 10% 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.

CF: 
(  ) DoD PDBR
(  ) DVA