RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00472
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050828

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Electronic Intelligence Analyst, medically separated for “bilateral hip pain” and “bilateral shin splints,” rated 0% and 0%, respectively, with a combined disability rating of 0%.  

CI CONTENTION:  The CI made no specific contention.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 – 20050617	VARD - 20071019	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Hip Pain	5099-5003	0%	Bilateral Hip Condition 	5252	NSC	20070629	
Bilateral Shin Splints	5022	0%	No VA Placement	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Bilateral Hip Pain.  The PEB combined the right and left hip conditions as a single unfitting condition with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right hip pain began during basic training in March 2004.  All visits to primary care and physical therapy in March, April, May, June, and October 2004 addressed only the right hip.  Ranges of motion (ROMs) in March, May, June, and November 2004 were normal (“full”).  Tenderness of the lateral hip (greater trochanter bursitis) was documented in May and June 2004.  Painful motion was documented in March, April, and November 2004.  Radiographic imaging (X-rays and bone scan) in April 2004 and March 2005 documented normal hips bilaterally.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.   The MEB forwarded “bilateral hip pain” for PEB adjudication.  

According to the commander’s statement dated 11 April 2005, the CI’s “hip pain” did not interfere with the duties of her military specialty, and that she performed “in an exemplary manner.”  Duty limitations for the “hip pain” recommended by Army profile, dated 12 April 2005, included no running, jumping, or marching.  Physical therapy (PT) ROMs performed 5 May 2005 documented bilateral hip flexion to 115 degrees (normal 120), bilateral extension to 15 degrees (normal) and bilateral abduction to 25 degrees (normal 45).  Adduction (normal 45) was to 18 degrees on the right and to 20 degrees on the left.  External rotation (out toeing) was to 35 degrees on the right and to 40 degrees on the left (normal 45).  Painful motion was not addressed.  

At the April and May 2005 MEB examination (recorded on DD Forms 2807 and 2808), 3-4 months prior to separation, the CI reported pain with prolonged walking.  The examiner referenced the PT ROMs performed in May 2005.  At the 19 April 2005 MEB NARSUM examination, 4 months prior to separation, the CI reported occasional “clicking” sensation, and pain worsened by prolonged sitting, walking, maneuvering stairs, and lifting.  She denied “catching” and giving way.  The physical examination showed a normal gait and tenderness over the femoral head.  

There was no VA examination in evidence within the 12-month allowable window for adjudication.  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated the bilateral hip pain as a single unfitting condition analogously coded 5099-5003 (degenerative arthritis) and rated 0% with application of the USAPDA pain policy.  The panel first considered if the left and right hip pain, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  “Hip pain” was profiled with lower extremity restrictions.  The commander’s statement and the NARSUM examiner implicated the bilateral hip condition; it was forwarded by the MEB, and determined to be unfitting by the PEB.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the bundled bilateral hip conditions were reasonably considered separately unfitting.  

Right Hip Pain.  The panel next considered the evidence for rating the right hip condition.  Application of VASRD §4.59 (painful motion), §4.40 (functional loss), §4.45 (the joints) was supported by documentation (painful motion and mechanical limitations of the hip) supporting a 10% rating analogously coded 5255-5003 (femur, impairment of, with slight hip disability).  There was no evidence of nonunion of the femur, with or without loose motion; no documentation of weight bearing preserved with aid of brace; and no evidence of a false joint in support of a higher than 10% rating.  There was no evidence of malunion of the femur that resulted in a moderate or marked degree of hip or knee disability in support of a higher rating.  There was no evidence of ankylosis (5250), abduction limited to 10 degrees (5253), or flexion limited to 30 degrees (5252).  After due deliberation, and considering all of the evidence, evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommended a separately unfit determination with a disability rating of 10% for the right hip condition.  

Left Hip Pain.  The panel next considered the evidence for rating the left hip condition.  Application of VASRD §4.40 (functional loss) and §4.59 (painful motion) was considered, however, there was no documentation of painful motion, muscle spasm, crepitation on motion, an unstable or malaligned joint, or other periarticular pathology.  There was no evidence for compensable ratings under any of the codes for limitation of motion at the hip, such as ankylosis, thigh flexion (5252); extension (5251); or abduction, adduction or rotation (5253).  There was no documentation of nonunion or malunion (5255) of a femoral neck or shaft fracture for rating under the femur codes.  The panel also discussed whether there was STR evidence of a chronic disability.  Pre-separation radiographs confirmed the absence of fracture, bony deformity or arthritis and bilateral hip imaging documented no evidence of stress fractures prior to separation.  After due deliberation, and considering all of the evidence, evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommended a separately unfit determination with a disability rating of 0% for the left hip condition.  

Bilateral Shin Splints.  The PEB combined the right and left shin splint conditions as a single unfitting condition with application of the USAPDA pain policy.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The Panel also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

According to the STR and the MEB NARSUM, the CI’s bilateral shin splints began in March 2004 during basic training.  Two clinical entries in March 2004 addressed the left anterior shin as being tender to palpation.  Radiographic imaging (bone scan) in April 2004 and March 2005 documented abnormal shins bilaterally consistent with shin splints.  Conservative treatment did not result in improvement sufficient to allow unrestricted duty, and the CI was referred for an MEB.   The MEB forwarded “bilateral shin splints” for PEB adjudication.  

At the April and May 2005 MEB examination (recorded on DD Forms 2807 and 2808), 3-4 months prior to separation, the CI reported nothing related to the bilateral shins.  The physical examination did not include the shins.  The 11 April 2005 commander’s statement did not address the shins.  The April 2005 profile included “chronic shin splints,” with the duty limitations nonspecifically addressing both of the lower extremities.  At the 19 April 2005 MEB NARSUM examination, 4 months prior to separation, the CI reported that the pain was aggravated by prolonged walking and running, with no pain at rest.  The physical examination showed tenderness along the bilateral shins (at the tibialis anterior muscles).  There was full ROM and crepitus of the knees with no tenderness and no instability.  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated the bilateral shin splints as a single unfitting condition coded 5022 (periostitis) and rated 0% with application of the USAPDA pain policy.  The panel first considered if the left and right shin splints, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Both shins splints were profiled with lower extremity restrictions, however the commander’s statement did not implicate the shin condition.  The NARSUM examiner implicated the bilateral shin condition, it was forwarded by the MEB, and determined to be unfitting by the PEB.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the bundled bilateral shin condition was reasonably considered separately unfitting.  

The panel then considered the rating recommendation for the separately unfitting left and right shin splint conditions at the time of separation.  The panel discussed if there was sufficient evidence of painful motion IAW VASRD §4.59 to warrant minimal compensable ratings for the bilateral shins.  In this case, there were no significant distinctions with regards to the clinical features of the right and left shins.  There was documentation of bilateral tenderness to palpation 4 months pre-separation by the NARSUM examiner, and there was radiographic evidence of bilateral shin splints.  However, there was no evidence of limitations of motion at the knee (5260, 5261, 5262) or ankles (5271).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel unanimously recommends a separate disability ratings of 0% for the left shin and 0% for the right shin conditions, coded 5022 (periostitis).  

BOARD FINDINGS:  In the matter of the bilateral hip conditions, the panel majority recommends that each joint be separately adjudicated as follows: an unfitting right hip condition coded and rated 10%, and an unfitting left hip condition, coded 5099-5003 and each rated 0%, both IAW VASRD §4.71a.  In the matter of the bilateral shin splint conditions, the panel unanimously recommends that each joint be separately adjudicated as follows: an unfitting right shin condition and an unfitting left shin condition, coded 5022 and each rated 0%, both IAW VASRD §4.71a.  The single voter for dissent recommended that the left hip be not separately unfit and did not elect to submit a minority opinion.  There were no other conditions within the Panel’s scope of review for consideration.  The Panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Hip Pain	5099-5003	10%	
Left Hip Pain	5099-5003	0%	
Right Shin Splints	5022	0%	
Left Shin Splints	5022	0%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, w/atchs
Exhibit B.  Service Treatment Record

AR20170005971, XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	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.

Sincerely,	
Enclosure