RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02242
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Trainee, medically separated for “bilateral tibial stress fractures…and stress changes of the bilateral knees and ankles” with disability rating of 0%.

CI CONTENTION:  “I have never had a problem with my bones before. I felt that I wasn’t given a good reason as to why this happened.  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 - 20030710	VARD - 20080522	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Tibial Stress Fractures…and Stress Changes of the Bilateral Knees and Ankles	5022	0%	Tibia Stress Fractures, Bilateral	5262	NSC	20080410	
			Left Knee Strain	5261	0%	20080410	
			Right Knee Strain	5261	0%	20080410	
			Right Ankle Strain	5271	0%	20080410	
			Left Ankle Strain	5271	0%	20080410	
Spinal Epidural Hematoma, Resolving	Not Unfitting 	Spinal Cord Epidural Hematoma	8022	NSC	20080410	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Bilateral Tibial Stress Fractures…and Stress Changes of the Bilateral Knees and Ankles.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral lower extremity pain condition began in either late March or early April 2007 during basic combat training.  X-rays dated 10 April 2007 of the lower legs bilaterally were normal and X-rays dated 19 April 2007 of the right knee were normal.  A bone scan dated 7 June 2007 demonstrated left tibial severe stress changes versus a grade I stress fracture and a right tibial stress fracture.  Moderate to severe bilateral stress changes were present with both ankles and feet and severe changes of the distal left first metatarsal were noted.  

The 25 March 2007 MEB NARSUM examination, 7 months prior to separation, noted complaints of pain in the lower extremities due to bilateral lower extremity stress fractures and stress changes.  Physical examination showed the CI ambulated with crutches.  The right knee demonstrated no edema or effusion.  She had no quadriceps atrophy and had a stable kneecap.  A grind test was negative and crepitation was noted.  The active range of motion (ROM) was 135 degrees of flexion and 5 degrees of extension.  She was exquisitely tender to palpation over the medial and lateral femoral condyles as well as the medial and lateral tibial plateau.  The knee was stable (negative Lachman’s, negative drawer tests, and no laxity with valgus or varus stressing).  McMurray’s test (to determine a meniscal tear) was negative.  There was no joint line tenderness or tenderness over the patellar tendon.  Examination of the left knee demonstrated no edema.  She had a stable kneecap and a negative grind test.  On a straight leg raise there was mild crepitation.  Flexion was 135 degrees and extension 5 degrees.  There was exquisite tenderness to palpation over the medial and lateral femoral condyles as well as the medial and lateral tibial plateau.   The knee was stable (negative Lachman’s, negative drawer tests, and no laxity with valgus or varus stressing).  McMurray’s test (to determine a meniscal tear) was negative.  She was nontender to palpation over the patellar tendon as well.  Examination of the tibiae demonstrated no edema and the skin was intact.  She was exquisitely tender to palpation over the mid-one-third of the tibiae and the compartments were soft bilaterally.  Examination of the right ankle demonstrated generalized tenderness with no edema or effusion.  She was tender to palpation over the Achilles tendon with a palpable step off and she had positive plantar flexion with compression of the gastrocnemius muscle.  She had negative drawer tests and no subtalar pain, but did have increased discomfort with a tibial tilt (to determine talar-tibial laxity).  Dorsiflexion of the right ankle was an average of 9 degrees and plantar flexion was 45 degrees. Muscle activity of the ankle and foot was normal.  She had mild discomfort with palpation of the midfoot and had forefoot adduction 20 degrees and forefoot abduction 10 degrees.  The left ankle demonstrated no edema or effusion.  She had tenderness to palpation over the Achilles tendon without a palpable step off and demonstrated positive plantar flexion with compression of the gastrocnemius.  She had no subtalar pain, negative drawers, but did experience increased pain with tibial tilt.  ROM dorsiflexion of the left ankle was 15 degrees and plantar flexion 45 degrees.  Muscle activity of the ankle and foot was normal.  The midfoot demonstrated exquisite tenderness to palpation over the navicular bone.  She was nontender to palpation with a flexible arch and nontender at the insertion of plantar fascia.  Forefoot adduction was 20 degrees and forefoot abduction 10 degrees.  The commander’s statement dated 20 July 2007 indicated the CI was incapable to perform her duties as a 68W (Army combat medic) due to the fact that she was diagnosed with bilateral tibia stress fractures.

During 25 July 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported stress fractures causing constant pain to the lower extremities and trouble sleeping due to chronic leg pain. The examiner noted bilateral knee pain secondary to severe stress changes, bilateral tibial stress fractures, left ankle stress changes, and a left navicular stress reaction.  A whole body scan dated 26 July 2007 demonstrated focal, increased uptake in the right inferior pubic ramus and focal stress changes in the medial aspect of bilateral tibias.  The left ankle and left first metatarsal phalangeal joint demonstrated mild stress changes.  Pain was present 90-100% of the day and she took tramadol (an opioid-like medication) and Motrin (ibuprofen, a nonsteroidal anti-inflammatory drug (NSAID)).  Additionally, she was afforded 30 days convalescent leave, which did not alleviate her symptoms. 

At the 10 April 2008 VA Compensation and Pension (C&P) evaluation, less than 6 months after separation, the CI reported being on crutches from June 2007 to January 2008 and could only stand for about 10 minutes until her legs began to hurt.  She also noted she was 4½ months pregnant and her OB/GYN physician had her discontinue crutches in January 2008.  Physical examination showed a normal gait and normal muscle strength bilaterally with the ROMs bilaterally for flexion 0-140 degrees and extension 0-90 degrees without painful motion.  ROM measurement for each ankle was 0-20 degrees dorsiflexion and 0-45 degrees plantar flexion without painful motion.  There was no evidence of foot or toe deformities bilaterally.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral lower extremity pain condition 0%, coded 5022 (periostitis), citing bilateral tibial stress fractures, confirmed on bone scan, and stress changes to the bilateral knees and ankles.  Bilateral knee ROM 5-140 degrees and bilateral ankle ROM dorsiflexion 0-20 degrees and plantar flexion 0-15 degrees.  The VA rated the tibial stress fractures, bilateral condition not service connected, coded 5262 (tibia and fibula, impairment of), based on the C&P examination less than 6 months after separation, citing no permanent residual or chronic disability subject to service connection was shown by the STR or demonstrated by evidence following service.

The PEB combined the bilateral tibial stress fractures and stress changes of the bilateral knees as a single unfitting condition coded 5022 and rated 0%. The approach by the PEB commonly 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’s initial charge in this case was 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.  The panel majority felt even with unbundling, no condition rose to a rating of more than 0% especially since the CI reported no painful motion and had normal ROMS of the knees and ankles at the VA C&P examination.  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 bilateral tibial stress fractures…and stress changes of the bilateral knees and ankles condition.  

Contended PEB Condition:  Spinal Epidural Hematoma, Resolving.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement, or judged to fail retention standards.  The CI was seen in the Emergency Room on 30 July 2007 for suspected meningitis and underwent a lumbar puncture (spinal tap).  On 31 July 2007 the CI had significantly worse lower back pain with constant throbbing in the L5 region without radiation and she was unable to ambulate and had an associated severe headache.  Magnetic resonance imaging (MRI) dated 31 July 2007, ordered for severe lumbar pain and new S1 radiculopathy to rule out a hematoma, abscess, or herniated nucleus pulposus, demonstrated extensive rostrocaudal (long axis of the spinal cord (from head to tail)) extent of a mild to moderate epidural hematoma with no focal distortion of the spinal cord.  The CI was hospitalized from 31 July 2007 to 4 August 2007 and had no neurological deficits during that time.  Treatment was with rest, Percocet (oxycodone, a narcotic, and acetaminophen, a pain reliever), and crutches.  At a neurosurgical visit on 14 September 2007 her neurologic examination was normal; however, an MRI was ordered because of the extent of the hematoma.  On 17 September 2007 the MRI demonstrated near complete resolution of the epidural hematoma in the spinal canal with minimal enhancement of the conus (tapered lower end of the spinal cord), likely due to prior compression.  There was no cauda equine or cord compression and no neural structure impingement.   There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition; and so, no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the bilateral tibial stress fractures…and stress changes of the bilateral knees and ankles condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended spinal epidural hematoma, resolving condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the panel’s scope of review for consideration.  The panel therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150809, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion.  

Minority Voter’s Approach to PEB Consolidated Rating. The PEB combined the bilateral tibial stress fractures and stress changes of the bilateral knees and ankles conditions as a single unfitting condition coded 5022 and rated 0%. The approach by the PEB commonly 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 minority voter’s initial charge in this case was 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 minority voter considered 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 a panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

Several options were available to unbundle the six conditions (bilateral tibial stress fractures, and stress changes of the bilateral knees and bilateral ankles).  However, for purposes of simplicity, accuracy, coding, and rating purposes, the minority voter’s approach separated the conditions into the right lower extremity condition and left lower extremity condition.  Not only is that a logical unbundling, it is consistent with various sections of the VASRD including, but no limited to VASRD §4.6 (interpretation of examination reports), VASRD §4.10 (functional impairment) and VASRD §4.40 (functional loss) , VASRD §4.7 (higher of two evaluations), VASRD §4.14 (avoidance of pyramiding), VASRD §4.20 (analogous ratings), VASRD §4.21 (application of rating schedule), VASRD §4.26 (bilateral factor) and VASRD 4.3 (resolution of reasonable doubt).  More specifically, VASRD §4.26 is most applicable in this case since “(a) The use of the terms “arms” and “legs” is not intended to distinguish between the arm, forearm and hand, or the thigh, leg, and foot, but relates to the upper extremities and lower extremities as a whole.”  No less important are VASRD §4.10, which states in part:  “Whether the upper or lower extremities . . . are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support” and VASRD §4.40 (functional loss), which states:  “Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.”

The evidence for the bilateral tibial stress fractures and stress changes of the bilateral knees and ankles conditions was presented together above.  In this case, a bilateral condition was profiled, and the bilateral tibial stress fractures and stress changes of the bilateral knees and ankles conditions were implicated by the NARSUM and bilateral tibial stress fractures were referred to in the commander’s statement.  The minority voter discussed, but the panel majority did not agree that each lower extremity condition was not only symptomatic proximate to separation, but also still had bone scan changes of the bilateral tibia as well as of the ankles and knees, is separately unfitting and that identical coding and ratings are applicable. 

The minority voter discussed analogous code 5022-5262 as most specific and applicable to rate the CI’s condition since the stress fractures and stress reactions fall within the purview of periostitis (5022) while the tibial stress fractures and subsequent bilateral stress reactions in the tibia noted on a follow-up bone scan along with involvement of the knees and ankles are consistent with and are analogous to malunion of the bilateral tibial involvement with slight knee or ankle disability based on bone scan findings.  No imaging evidence was available to demonstrate either partial or complete resolution of those changes.  Although the ROMs of the knees and ankles were within normal limits, the CI was unable to perform the duties of her MOS.   Furthermore, even though there was no painful motion of the ankles and knees at the VA examination approximately 6 months post-separation, which was further from separation than the MEB examination and the follow-up bone scan, the minority voter noted the CI was pregnant such that follow-up imaging was not performed.  Nevertheless, the CI noted she could only stand for about 10 minutes before her legs began to hurt. Therefore, a 10% rating for each lower extremity is reasonable and affords the benefit of doubt to the CI since she had stress fractures and subsequent stress changes in the tibias as well as stress changes in the ankles in the follow-up bone scan and there was increased pain with a tibial tilt bilaterally.  The minority voter, however, did not feel the condition rose to a moderate level at the time of separation or subsequently based on the VA examination findings.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the minority voter recommends a disability rating of 10% for the right tibial stress fracture and stress changes of the right knee and right ankle condition, coded 5022-5262 and a disability rating of 10% for the left tibial stress fracture and stress changes of the left knee and left ankle condition, coded 5022-5262.   

The minority voter 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 Tibial Stress Fracture and Stress Changes of the Right Knee and Right Ankle	5022-5262	10%	
Left Tibial Stress Fracture and Stress Changes of the Left Knee and Left Ankle	5022-5262	10%	
COMBINED	20%	

AR20170015106, XXXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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 record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I reject the Board’s majority recommendation and accept the Board’s minority opinion that your disability rating should be modified to 20% but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  

	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