RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-04055
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080318

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 “stress fracture left femoral neck,” with a 10% disability rating. 

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 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 -  20080311	VARD - 20081126  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Stress Fracture Left Femoral Neck	5022	10%	Closed Stress Fractures of, Femoral Neck to Include Pain	5251	10%	20081004	
Acquired Deformity, Lower Extremity	Not Unfitting	Shin Splints of the Left Leg (also claimed as Bilateral Leg Condition	5299-5262	0%	20081004	
		Shin Splints of the Right (sic) Leg (also claimed as Bilateral Leg Condition	5299-5262	0%	20081004	
		Unspecified Right Knee Condition	5260	NSC	20081004	
		Unspecified Left Knee Condition	5260	NSC	20081004	
		Closed Fractures of the Right Heel	5299-5273	NSC	20081004	
		Closed Fractures of the Left Heel	5299-5273	NSC	20081004	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Stress Fracture Left Femoral Neck.  According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s stress fracture of the left femoral neck condition marked by pain and inability to bear weight in the left lower extremity began in October 2007 during pre-training fitness exercising.  The CI experienced constant lower back and bilateral lower extremity pain felt worse on the left hip.  A bone scan dated 19 November 2007 demonstrated a probable stress fracture of the left femoral neck on the compressive side, diffuse bilateral quadrant and shin splints and probable early stress fractures of both calcanei (heel bones).  X-rays of the hips on 21 November 2007 revealed no evidence of stress fracture callus and both hip joints were within normal [limits].  At an orthopedic examination dated 26 November 2007 and signed off on 2 December 2007, the CI’s hips had an abnormal appearance with misalignment and femoral retroversion along with coxa valga.  There was tenderness on palpation of the femoral triangle and hip flexor and adductor muscles with limitation of motions of the hip.  Hip flexion and rotations were abnormal.  Hip extension, abduction, and adduction were normal.  There was no instability of the hips and no muscle spasm.  The left hip showed femoral retroversion and coxa valga (an increased angle between the femoral neck and femoral shaft) and hip tenderness was observed with ambulation.  The examiner indicated the CI had been appropriately treated with non-weight bearing and crutch ambulation.  At a focused orthopedic physical examination dated 27 November 2007 the CI reported pain at rest 6/10 (10 being the worst pain) and pain with movement 9/10.  Pain of the left hip was described as being experienced close to 100% of the time and was described as moderate to severe and constant.  On examination of the CI’s hips presented with bilateral abnormalities.  Again noted was malalignment of the joint with coxa valga and femoral retroversion (and external rotation of the hips was markedly increased to approximately 85 degrees). There was tenderness to palpation of both femoral triangles and the hip flexor muscles.  The hip adductor muscles were stretched and there was significant limitation of motion with pain exhibited throughout the limits of all planes of motion.  Bilaterally the hips showed weakness, which may have been secondary to pain inhibition.  The lateral portions of the thighs to the greater trochanters were not inflamed and the thighs were normal.  No hip muscular tightness or spasms were noted.  The left hip in addition presented significant pain with active flexion, active internal rotation with the hip extended and external rotation with the hip extended.  There was more weakness on the left hip (4/5), and tenderness was elicited with ambulation.

The NARSUM examiner on 27 November 2007 indicated the CI could not kneel, crawl, run, ruck, or train.  Walking for short periods of time would intermittently result in 6-8/10 pain and the CI could climb stairs minimally before pain ensured.  The CI did not respond to PTRP (Physical Training and Rehabilitation Program) functional rehabilitation program; however, no further radiographic evidence of the fracture was noted.  The examiner noted that concurrent lower extremities acquired deformities and lateral tibial torsion have been demonstrated in research to be high contributors to stress reactions and fractures while performing high impact joint loading activities as those experienced and required during military basic training and that could explain the uptake noted in the tibia and the calcaneus bilaterally.

At the MEB examination dated 11 January 2008, 7 months prior to separation, the CI reported stress fractures from hips to ball of heels.  No physical findings of the lower extremities were noted, although on clinical evaluation the lower extremities box was checked abnormal and stress fracture of the lower extremity was listed in the summary of defects and diagnoses.  

At the VA Compensation and Pension (C&P) examination on 4 October 2008, performed 2 months after separation, the CI reported the hip pain made ADLs (activities of daily living) difficult and a limited desire to ambulate.  Standing from a seated/toileting position was very difficult.  The range of motion (ROM) measurements are in the chart below.  Physical examination revealed the CI had an erect posture and an antalgic gait for which he utilized a cane.   
The ROM examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Hip (Thigh) ROM
In Degrees	PT ~2 Mo. Pre-Sep
	VA C&P ~2 Mo. Post-Sep
	
Flexion (0-125⁰)	83/83/83	0-125	
Extension (0-20⁰)	-3/-3/-3	0-30	
Internal rotation (0-40⁰)		0-40	
External Rotation (0-45⁰)		0-60	
Abduction (0-45⁰)	30/30/32	0-45	
Adduction (0-45⁰)		0-25	
Comment	No limitation of adduction, or toe-out ; limitation of motion due to pain		
§4.71a Rating	PEB 10%	VA 10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5022 code (periostitis), citing stress fracture left femoral neck (diagnosed on bone scan) which was non-surgical in nature but had led to chronic pain.  The VA also assigned a 10% rating using the 5251 code (thigh, limitation of extension) based on the VA C&P examination 2 months after separation, citing closed stress fractures of the femoral neck to include pain.  Board members discussed the PEB rating using code 5022, which is based on either limitation of motion (5251-thigh, limitation of extension, 5252-thigh, limitation of flexion, or 5253 thigh, impairment-limitation of abduction, adduction, or rotation) or degenerative arthritis (5003).  However, the CI’s ROMs measurements both before and post-separation do not offer an option for a higher rating since all of the measurements exceeded a compensable rating.  Using code 5003 likewise does not offer a rating greater than 10%, unless there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  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 stress fracture left femoral neck condition.  

Contended PEB Condition-Acquired Deformity Lower Extremity.  The Board’s main charge is to assess the fairness of the PEB’s determination that the acquired deformity lower extremity was not unfitting.  The acquired deformity was profiled (stress fractures multiple long and short bones both lower extremities consequence of acquired deformities) and implicated in the commander’s statement, but was not judged to fail retention standards based “by itself, it does not interfere with performance of his duties and is a finding that contributed to the development of his stress fracture.”  The CI complained of pain from his knees down to his legs such that he could barely walk or stand.  He had pain in both knees when actively moved and the pain was worse with weight bearing.  X-rays of the right and left knees and the right and left tibias and fibulas on 2 November 2007 were normal.  A bone scan in November 2007 revealed diffuse bilateral quadrant and shin splints and probable early stress fractures of both calcanei (heel bones).  Treatment consisted of acetaminophen (a pain reliever), calcium carbonate/vitamin D, and ibuprofen (a nonsteroidal anti-inflammatory drug (NSAID)).  Examination of the knees was normal.  There was misalignment of the tibias with bowing of the legs and there was tenderness to palpation of the left leg in the tibial shaft areas and anterior compartment.  Tenderness was also present on ambulation.  The ankles, feet and toes showed no abnormalities.  ROM measurement are in the charts below.  The orthopedic surgeon noted in regard to the bone scan that there was also uptake on the lower extremities at the tibia and the calcaneus, but the symptoms continued to be worse at the left lower extremity and almost not noted on the right lower extremity.  Because of the deformities identified at both lower extremities, the CI was recommended for a MEB to prevent further injury.

After eparation the CI had polyarthralgias and polyarthritis.  However, by history he had on and off joint pain intermittently over many years as a child but more frequently since October 2007.  X-rays of the left wrist, knees, hips, left shoulder and feet were normal with mild periarticular osteopenia.  A bone scan in July 2008 was normal.  In September 2008 the CI’s vitamin D level was very low (< than 7).  An endocrinology consultant advised the CI to start calcium and ergocalciferol 50,000 IU weekly. A series of rheumatologic evaluations and laboratory studies were obtained to determine the etiology  of the CI’s stress fractures, progressively worsening joint pain and muscle weakness, severe vitamin D deficiency, episodic severe abdominal pain, mild periarticular osteopenia (decreased mineralization of the bone), hypophosphatemia and elevated CPK (creatine phosphokinase-to determine muscle status). On examination in February 2009 the CI had full ROM of the shoulder, no pain with internal or external rotation, full ROM of the knees without evidence of synovitis, but some tenderness laterally and on the patella, full ROM of the ankles, and no swelling of the feet with tenderness on the plantar surfaces.  

Knee ROM
(Degrees)	PT ~2 Mo. Pre-Sep
	VA C&P ~7 Mo. Post-Sep
	
	Left	Right	Left	Right	
Flexion (140 Normal)	136/136/136	130/130/130	140	140	
Extension (0 Normal)	0/0/0	0/0/0	0	0	
Comment	Limitation due to pain	Limitation due to pain			
§4.71a Rating	10%	10%	0%	0%	

Ankle ROM
(Degrees)	PT ~2 Mo. Pre-Sep
	
	Left	Right	
Dorsiflexion (20 Normal)	10/10/10	-3/-3/-3	
Plantar Flexion (45)	50/50/50	58/58/58	
Comment			
§4.71a Rating	10%	10%	

There was no performance-based evidence from the record that the acquired deformity lower extremity condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, and in consideration of the preponderance of the evidence, the Board majority concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the acquired deformity lower extremity condition; and so, no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the stress fracture left femoral neck condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended acquired deformity lower extremity condition, the Board majority recommends no change from the PEB determination as not unfitting.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

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

Minority Opinion.  The minority voter strongly recommends the CI be found unfit for the acquired deformity of the lower extremity.  First the PEB failed to define or clarify the extent of the acquired deformity of the lower extremity and whether it involved the right lower extremity, the left lower extremity, or both lower extremities.  However, the acquired deformity was profiled (stress fractures multiple long and short bones both lower extremities consequence of acquired deformities) and was implicated in the commander’s statement.  However, the PEB noted that the acquired deformity, which it did not define “by itself, it does not interfere with performance of his duties and is a finding that contributed to the development of his stress fracture.”  Clearly and without any doubt that acquired deformity marked by multiple stress fractures confirmed by bone scan did interfere with the CI’s performance of his duties such that he could barely walk or stand.  Presumably the acquired deformity of the lower extremity was the misalignment of the tibias with bowing or, as noted above, malalignment of the hip joints with coxa valga and femoral retroversion.  However, whether the acquired deformity was related to the tibias, the hips, or both, the inconvertible fact is the CI could not perform his assigned duties.  Furthermore, there is a presumption of soundness that ought to have been taken into account in the CI’s case.  While the CI had a history of on and off joint pain intermittently over many years as a child, the STR did not indicate that the CI had a diagnosis or treatment prior to enlistment for any acquired condition.  Therefore, even though the MEB considered the condition as having existed prior to service (EPTS), the PEB did not address service aggravation (“A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. 1153), which was obvious from both clinical and bone scan findings and is IAW DoDI 1332.38 E3.P4.5.2.3., which states “Presumption of Aggravation. The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training. Such medical evidence must be based upon well-established medical principles, as distinguished from personal medical opinion alone. Preponderance of evidence is defined as that degree of proof necessary to fully satisfy the board members that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.”   More importantly, the PEB did not address the presumption of soundness, which requires the use of the standard of clear and unmistakable, the burden which the PEB had to overcome (IAW Wagner, 370 F.3d 1089, which cites 38 U.S.C. 1111), but did not.  Therefore, the Board, based on NDAA 2008 and the subsequent DoD regulations, is required to use of the VASRD for rating purposes.

For all the aforementioned reasons, the minority voter recommends the Board conclude that preponderance of the evidence with regard to the functional impairment of acquired deformity lower extremity condition favors its recommendation as additionally unfitting conditions for disability rating.  It is appropriately coded 5299-5262 (tibia and fibula impairment with slight knee or ankle disability) and meets the VASRD §4.71a criteria for a 10% rating for the right lower extremity and a 10% rating for the left lower extremity.  

Therefore, the minority voter recommends the Board conclusion should be as follows:

In the matter of the stress fracture left femoral neck condition, the Board recommends a disability rating of 10%, coded 5022 IAW VASRD §4.71a.  In the matter of the contended acquired lower extremity condition, the Board agrees that it was unfitting recommends a disability rating of 10%, coded 5299-5262 IAW VASRD §4.71a for the left leg and a disability rating of 10%, coded 5299-5262 IAW VASRD§4.71a for the right leg.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Stress Fracture Left Femoral Neck	5022	10%	

Acquired Deformity Lower Extremity (left and right)
	5299-5262	10%	
	5299-5262	10%	
COMBINED	30%	

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 
AR20160017811 (PD201404055)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA