RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01610
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Air Traffic Control Operator, medically separated for “chronic bilateral leg pain,” with a disability rating of 10%.

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 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 - 20040615	VARD - 20060905	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Leg Pain	5099-5003	10%	History of Bilateral Anterior Medial Tibia Syndrome	5399-5312	0%	20060207	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Bilateral Leg Pain.  The PEB combined the shin splint conditions as a single unfitting condition coded analogously to 5003 and rated with application of the USAPDA pain policy AR 635-40 B24.f.  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 or implied adjudication that each condition was separately unfitting.  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 service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic bilateral leg pain began in approximately February 2003 with no specific injury.  On 10 November 2003, 10 months prior to separation from military service, bone scan results of the bilateral tibias found the anterior tibias, left greater than the right, showed periostitis (shin splints).  In February 2004, the CI reported at a primary clinic appointment that he had bilateral leg pain, rated as 6-8/10.  The examiner annotated that the CI was seen three times with complaints of tenderness and pain 6-8/10.  The examiner opined “bilateral shin splints, chronic.”  On 11 March 2004, the CI was given a permanent profile for bilateral leg pain.  The MEB NARSUM examination on 18 May 2004, 4 months prior to separation, noted complaints of bilateral leg pain for over one year.  The CI reported increased symptoms after running.  Physical examination showed tenderness to palpation along the shins bilaterally.  There was no VA Compensation and Pension (C&P) evaluation in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The panel initially directed its attention as to whether the bilateral leg pain was “reasonably justified as separately unfitting” to be considered separately unfitting.  In this case, both legs were profiled, considered to fail retention standards, and implicated by the NARSUM and in the commander’s statement.  Members agreed that each leg was separately unfitting. 

The PEB rated the chronic bilateral leg pain 10%, analogously coded 5099-5003 (arthritis, degenerative), citing the US Army Physical Disability Agency (USAPDA) pain policy.  VA rated the chronic bilateral leg pain 0% analogously coded 5399-5312 (group XII muscle injury), based on the VA C&P examination 17 months after separation, citing a noncompensable evaluation for slight muscle disability, which included a simple muscle wound without debridement or infection.  

The evidence did not support a 10% rating for each leg for painful motion or limitation of motion under 5020 (periostitis).  However, there was radiographic evidence periostitis and tenderness to palpation both tibias on the NARSUM examination for a 10% rating analogous to 5003.  The panel concluded there was no evidence to support a rating higher than the rating adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic bilateral leg pain condition.  

BOARD FINDINGS:  In the matter of the bilateral leg pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The panel, 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 20150619, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170008562, XXXXXXXXXXXXXXXXXX

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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.