RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01147
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070131

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E3, Basic Trainee, medically separated for “chronic pain in the bilateral lower extremities secondary to healed stress fracture of the hip and lower extremities” with a disability rating of 0%.  

CI CONTENTION:  “Review all conditions.”  The CI’s 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 progression or complications of service-connected conditions after separation.  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 - 20070118	VARD - 20080219	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain in the Bilateral Lower Extremities	5099-5003	0%	Stress Fracture Right Femur	5099-5003	0%	STR	
			Bilateral Hip Condition	5253	NSC	STR	
			Tibia Shin Splint	5299-5257	NSC	STR	
			Bilateral Knee Condition	5260	NSC	STR	
			Bilateral Ankles	5271	NSC	STR	
			Bilateral Feet Condition	5284	NSC	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Pain in the Bilateral Lower Extremities.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral lower extremity conditions began in May 2006 during Basic Training, without specific trauma.  Bone scan dated 23 May 2006 showed increased activity at the left femoral neck at the head and at both knees (tibial plateaus and condyles) consistent with mild stress fractures.  There was also bilateral shin splint uptake and right ankle uptake (right medial malleolus [distal tibia] and posterior superior calcaneus).  The DA Form 2173, Statement of Medical Examination and Duty Status (LOD), signed in May and June 2006, listed “stress fractures - left femoral neck, both medial tibial plateaus and adjacent condyles, and bilateral shin splints.” A bone scan dated 6 September 2006 showed a healed left femoral neck stress fracture, with bilateral uptake at the tibial plateau of both knees.  There was no surgical indication and despite physical therapy (PT) the CI was unable to return to training due to bilateral lower extremity pain.  

The 11 October 2006MEB NARSUM examination, 4 months prior to separation, noted complaints of bilateral hip pain, bilateral tibia pain, bilateral ankle pain, bilateral sciatica, and some neurologic symptoms in her right leg.  There were additional complaints of the bilateral upper extremities and skin which were not in scope for PEB adjudication.  The orthopedic surgeon stated that upon his examination the CI “had more complaints than imaginable.  She had continuous pain in her right proximal femur thought to stem from her stress fracture and clearly was not making any progress in healing that at all.  There has been extensive use of orthopedic, physical therapy and other practitioners since the time of her initially starting training earlier in the spring.  We thought it was highly unlikely this patient would ever be able to complete basic training and therefore thought it was best to separate her.”  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 6 November 2006, 3 months prior to separation, the CI reported a fracture of the femur with bilateral leg pain, swelling in knees and ankles, and inability to run.  Physical examination showed “multiple lower extremity stress fractures.”  

Physical therapy range of motion (ROM) evaluations performed on 7 November 2006 documented bilateral hips with slight ROM limitations due to pain and muscle guarding (extension was greater than 5 degrees, flexion was greater than 45 degrees, abduction was greater than 10 degrees and the CI could cross her legs and toe-out greater than 15 degrees).  Bilateral knee ROMs were slightly limited (flexions above 120 degrees and extensions not limited less than 0 degrees) without mention of pain, and there was no instability.  The bilateral ankle ROMs were limited due to pain with right ankle dorsiflexion 10 degrees (normal 20) left ankle dorsiflexion 8 degrees and plantar flexions of 42 (normal 45) and 39 degrees right and left respectively.  

There was no VA Compensation and Pension (C&P) examination in evidence and VA records indicate that the CI failed to report for a scheduled examination in July 2007.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB combined the chronic pain in the left lower extremity and the right lower extremity (as well as the hip and lower leg for each side) conditions as a single unfitting condition coded analogously to 5003 (degenerative arthritis) and rated 0% with application of the US Army Physical Disability Agency 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.  

The VA rated the right femur stress fracture condition 0%, coded 5099-5003 citing a non-compensable examination based on a history of fracture without a current VA examination to determine residuals.  The VA denied service connection for the bilateral hip condition, tibia shin splint, bilateral knee condition, bilateral ankles, bilateral feet condition, citing no evidence from a scheduled VA examination that the CI failed to report for in July 2007.  

The profile was for “multiple lower extremity stress fracture,” the commander’s statement implicated inadequate recovery from “a femoral neck and bilateral tibia due to an injury during BCT,” the MEB indicated that “multiple stress fractures” were medically unacceptable, and the PEB disability statement indicated intact strength and a range of all joints, slightly limited by pain.  

The panel majority adjudged that there was not sufficient evidence that chronic pain in either of the lower extremities was reasonably unfitting, and that the preponderance of the evidence did not support a conclusion that the functional impairment from either lower extremity pain or any of the multiple stress fracture conditions was integral to the CI’s inability to perform her duty.  Accordingly, the panel cannot recommend a separate rating for either lower extremity or any specific stress fracture of the hip or tibias.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic pain in the bilateral lower extremities condition.  

BOARD FINDINGS:  In the matter of the chronic pain in the bilateral lower extremities condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent recommended re-characterization submitted the appended minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification and no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150610, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

The minority strongly contends that unbundling the PEB’s combined adjudication that the “chronic pain in the bilateral lower extremities, secondary to healed stress fracture of the hip and lower extremities in basic training (MEB Dx multiple stress fractures),” clearly unbundled to a reasonably unfitting left femoral stress fracture for hip pain with limited motion, and a left and right tibial stress fracture with slight knee or ankle disability for each leg.  

The DA Form 3349 L3 profile was for multiple lower extremity stress fractures with duty limitations included all functional activities in block 5; as well as running, the APFT walk/run, and all unlimited aerobic conditioning activities in block 7.  The commander’s statement specifically noted inadequate recovery from a femoral neck and bilateral tibia injury as interfering with performance of military duties.  The MEB adjudged “multiple stress fractures” as not meeting standards, and the STR and PEB documented pain-limited motion of the left hip, and all lower extremity joints.  The disability attendant to only the left hip pain (femur stress fracture) and from each side of the bilateral lower extremity pain (tibia stress fracture [knee/ankle]) cannot be isolated by the clinical evidence, or extricated from the fitness implications of the multiple stress fracture and bilateral leg and lower leg limitations absent undue speculation.  There was no specific evidence, and certainly not a preponderance of evidence of the STR, that overcame the presumption that the bundled left lower extremity (both femur and tibial) and right lower extremity (tibial) pain conditions were reasonably considered separately unfitting.  The right femur/hip, although mentioned in the STR, was not noted on the bone scan as having a stress fracture and only one hip was implicated by both the commander and the PEB; therefore, the right hip was not reasonably separately unfitting.  

Each unfitting condition (left femur stress fracture/hip pain, and both tibial stress fractures/knee or ankle disability), had evidence of slight limitation of motion with pain with functional loss and slight disability supporting a 10% rating (based on §4.59, §4.40 and §4.45) for the left femur/hip, and the left tibia (knee/ankle), and the right tibia (knee/ankle).  

The Secretary is respectfully urged to consider the minority recommendation 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	
Chronic Left Lower Leg Pain Secondary to Healed Stress Fracture of the Left Femur (Hip)	5099-5255	10%	
Chronic Left Lower Leg Pain due to Tibial Stress Fracture (	5099-5262	10%	
Chronic Right Lower Leg Pain due to Tibial Stress Fracture	5099-5262	10%	
COMBINED	30%	

AR20170012849, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,