RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00749
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041027

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Reserve E2, Chemical Specialist, medically separated for “bilateral leg pain” with a disability rating of 0%.

CI CONTENTION:  The CI requested a review of 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 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 - 20040910	VARD – None	
Condition	Code	Rating	Condition	
Bilateral Leg Pain…	6099-5003	0%	No VA Examination in Evidence	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  N/A	

ANALYSIS SUMMARY:  

Bilateral Leg Pain Due to Multiple Stress Fractures.  The Medical Evaluation Board (MEB) forwarded “medial tibial plateau stress fractures” as not meeting retention standards and “right calcaneal stress fracture” and “left talar stress fracture” as meeting retention standards to the PEB for adjudication.  The PEB combined all three conditions as a single unfitting condition characterized as “bilateral leg pain due to multiple stress fractures” and coded analogously to 5003, 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 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 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 leg pain conditions is presented below, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to service treatment records (STR) and the MEB narrative summary (NARSUM), the CI’s leg condition began in April 2004.  The CI reported bilateral knee and ankle pain.  Bone scan in May 2004 showed bilateral stress fractures (fxs) of the medial tibial plateau (MTP) (part of the knee joint) and stress fxs of the left ankle and right heel.  The CI was placed on 30 days convalescent leave and when she returned she started rehabilitation with physical therapy.  Bilateral knee X-rays in mid July 2004 showed healing stress fxs of the MTP bilaterally.  A physical therapy evaluation 5 August 2004 noted persistent pain in the anterior lower legs bilaterally.  There was no tenderness of the right heel or left ankle remaining.  On examination there was tenderness with tibial tap noted.  The MEB forwarded “medial tibial plateau stress fractures” as not meeting retention standards and “right calcaneal stress fracture” and “left talar stress fracture” as meeting retention standards to the PEB for adjudication.  The permanent profile listed “bilateral leg pain stress fractures (knees).”  There was no commander’s statement in record.  The MEB NARSUM examiner indicated the “bilateral knee pain” fell below retention standards, but the right calcaneal and left talar stress fxs did not fall below retention standards.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated August 2004, 3 months prior to separation, the CI reported persistent knee pain.  The MEB NARSUM examination on 16 August 2004, 2 months prior to separation, noted complaints of “bilateral leg pain (knees).”  The CI reported bilateral knee pain and “some” ankle pain.  The pain was aggravated by fast or prolonged walking and stairs.  Physical examination showed a normal gait.  There was full range of motion (ROM) of the knees, without swelling, joint effusion, crepitus.  There was no evidence of instability or meniscal pathology.  Bilateral foot and ankle exam noted no swelling or localized tenderness and there was full ROM.  There was no VA Compensation and Pension examination in evidence.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral leg condition 0%, coded analogously to 5003 (arthritis, degenerative), citing “rated analogous to degenerative joint disease with no loss of motion.”  The Board first considered if the bilateral leg pain conditions which the PEB combined to include bilateral MTP stress fxs, right calcaneal stress fx and left talar stress fx each remained separately unfitting when separated from the PEB’s combined adjudication.  The permanent profile listed the bilateral knee pain.  The bilateral knee pain was determined to fall below retentions standards, but not the right calcaneal or the left talar stress fxs.  By the time of separation, the treatment notes in the STR indicated the left ankle and right calcaneal stress fx sites were no longer tender and the CI reported a predominate concern for bilateral anterior lower leg pain with standing.  The Board concluded that the preponderance of evidence showed the neither the right calcaneal stress fx or the left talar stress fx condition would have caused the CI to be referred into the DES or be found unfit and are therefore not eligible for separate disability rating.  However, the Board concluded that there was not a preponderance of evidence that overcame the Board’s presumption that the bundled bilateral leg pain condition was reasonably considered separately unfitting and therefore right and left leg pain conditions are each eligible for Service disability ratings.  The clinical evidence for rating the right and left leg pain conditions was identical and therefore the Board considered its rating recommendation for the unfitting right and left leg pain conditions together at the time of separation.  
As noted above, there are no distinctions with regards to clinical features or rating considerations between the right and left legs.  There was no evidence of limitation of motion which attained a minimum rating under the diagnostic codes for limitation of leg flexion or extension (5260, 5261) or ankle motion (5271).  At the MEB NARSUM examination the CI reported continued bilateral leg pain with activity but the exam noted no abnormalities of the knees or ankles.  Therefore, Member consensus was that the evidence did not support recommending separate disability ratings for the right and left leg under any applicable VASRD code.  However, the bilateral stress fx diagnoses noted on X-rays and bone scan supported a single rating coded analogously to 5003 (degenerative arthritis) for “two or more major joints” with imaging evidence of stress fxs (analogous to arthritis), without compensable limitation of motion or painful motion (as also applied by the VA); thus there is VASRD §4.71a latitude for a bilateral 10% rating.  No additional functional limitation was evidenced by the examinations.  There was therefore no VASRD §4.71a route to a higher rating under any applicable code.  The Board majority found that after unbundling the bilateral leg condition and recommending each leg was unfitting, the highest available rating was nonetheless for the bilateral condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10% for the bilateral leg pain condition coded 5099-5003.  

BOARD FINDINGS:  In the matter of the bilateral leg pain condition, the Board majority recommends a disability rating of 10%, coded 5099-5003 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	
Bilateral Leg Pain	5099-5003	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150603, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170006663, XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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,