RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00718
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050927

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Multichannel Transmission Systems Operator/Maintainer,  medically separated for “bilateral lower extremity pain,” with a disability rating of 0%.  

CI CONTENTION:  The CI’s condition negatively impact daily activities.  His 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 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 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 - 20050728	VARD - 20080916	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Lower Extremity Pain	5009-5003	0%	
Residuals Bilateral Shin Splints
	5024	NSC	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  N/A	

ANALYSIS SUMMARY:  

Bilateral Lower Extremity Pain.  The PEB combined the bilateral lower extremity pain as a single unfitting condition analogously coded 5009-5003 (degenerative arthritis) and rated 0%.  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 Board’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 Board 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 Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the bilateral shin conditions is presented with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral leg condition began in February 2003 with no history of acute trauma.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  Radiographic evaluations (bone scans) in May 2003 and April 2005 documented bilateral shin splints with a fracture in the left mid tibial shaft.  
The MEB forwarded “bilateral shin splints” and “left tibia stress fracture” for PEB adjudication.  

At the MEB NARSUM examination dated 10 June 2005 (3 months pre-separation), the CI reported bilateral shin pain with running, jumping, marching, and prolonged standing.  The physical examination showed tenderness over the bilateral mid tibias with focal pain in the left mid tibia.  There was shin pain with resisted ankle dorsiflexion, however, there was full range of motion (ROM) of the bilateral ankles.  Right knee ROM was 0-95 (normal 0-140) and left knee ROM was 0-110 with painful motion.  On the MEB DD Form 2808 dated 21 June 2005, the physical examination showed tenderness over the bilateral shins, and crepitus of the bilateral knees.  There was no VA Compensation and Pension examination in evidence for review.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated 0% for the bilateral lower extremity condition, analogously coded 5009-5003 (degenerative arthritis), citing the US Army Physical Disability Agency pain policy.  The VA rating decision dated 16 September 2008 did not grant service connection, citing no evidence of a chronic disability.  

The Board first considered if the right shin splints and left tibial shin splint and stress fracture, having been de-coupled from the combined PEB adjudication, each remained independently unfitting as established above.  In this case, both leg conditions were considered to fail retention standards; both were implicated by the NARSUM and in the commander’s statement and both were profiled.  The CI was on a permanent profile with significant limitations that would have resulted from either condition alone.  All members agreed that the right shin splints and left tibial shin splint and stress fracture, as isolated conditions, would have each rendered the CI incapable of continued service for his MOS and accordingly merit separate Service ratings.  

The Board next considered the rating recommendation.  Members debated if 0% was warranted for each leg or if application of §4.40 (functional loss) or §4.59 (painful motion) justified separate 10% ratings.  The Board also carefully considered the option of rating both tibial stress fractures together.  There was STR evidence of painful motion with functional loss supporting a 10% rating for each leg (based on §4.59, §4.40 and §4.45) IAW VASRD.  There was no documentation of limitation of motion of the ankles or knees attributable to the shin splints to support a compensable rating under relevant joint motion codes (5271, 5260, and 5261).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends separate disability ratings of 10% for the left and 10% for the right lower extremity conditions, coded 5003-5022 (periostitis).  

BOARD FINDINGS:  In the matter of the right and left tibial shin splints and left mid tibial stress fracture condition, the Board unanimously recommends a separate disability rating of 10% for the right and 10% for the left, coded 5003-5022 IAW VASRD §4.71a.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Tibial Stress Fracture and Shin Splints	5003-5022	10%	
Right Tibial Shin Splints	5003-5022	10%	
COMBINED w/ BLF	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, 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, AR20170002447  (PD201500718)

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 20% 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.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA