RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02328
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Wheeled Vehicle Mechanic, medically separated for “bilateral leg pain” with a disability rating of 10%.

CI CONTENTION:  The CI contends bilateral leg injuries.  The 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 - 20060828	VARD - 20061228	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Leg Pain	5399-5312	10%	Bilateral Leg Condition	5262	NSC	20061019	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Bilateral Leg Pain.  The PEB rated the bilateral leg pain condition as a single unfitting condition coded 5399-5312 (analogously muscle group XI) and rated 10%.  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.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral leg pain condition began in October 2004 with running.  X-rays and bone scan were negative.  In November 2005 the CI was found to have elevated anterior and lateral muscle compartment pressures with exercise.  Surgery was declined and further treatment did not result in improvement sufficient to allow unrestricted duty.  The 15 May 2006 MEB NARSUM examination, 6 months prior to separation, noted complaints of ongoing bilateral leg pain right worse than left.  Physical examination showed no tenderness of his bilateral calves and no edema of his bilateral lower extremities.  Both calves measured 41.5 cm.  There was tenderness of both lateral tibias and pain with heel raising.  Neurological and circulatory examination of both lower extremities was within normal limits.  The exam was otherwise unremarkable.  

At the 19 October 2006 VA Compensation and Pension evaluation, performed 2 months before separation, the CI reported pain in his shin muscles which occurred 5 times a week, lasting for 15 to 25 minutes with a severity of 9/10, elicited by physical activity and relieved by rest.  Physical examination of the lower extremities showed no gross abnormality in form or function.  His gait was normal, and he did not use or wear any assistive device.  There was no detectable alteration in sensation, form or function of the right and left tibia and fibula.  Motor and sensory function was normal.  Right and left knee and ankle reflexes were present and equal.  

The panel first considered if the each leg, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Both legs were profiled and limitations included no running, no unlimited walking, rucking or airborne operations.  According to the commander’s statement dated 28 April 2006, the CI’s physical impairments did not prevent him from fulfilling the requirements of his primary MOS but did make him unable to meet the physical requirements of the Army and those required of a paratrooper.  Panel members agreed that the evidence reasonably justified that the functional limitations of each leg contributed to the CI’s inability to perform his military duties and accordingly separate disability ratings are recommended.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral leg pain condition separately for each leg using VASRD diagnostic code (DC) 5399-5312 (analogous to muscle injury).  The left leg was rated 0% (slight), and the right leg was rated 10% (moderate), for a combined rating of 10%, citing elevated right leg anterior and lateral compartment pressures.  The VA rated the bilateral leg pain condition as not service connected, based on the VA examination 2 months before separation, citing although there was a record of treatment in service for bilateral compartment syndrome, no permanent residual or chronic disability subject to service connection was shown by the service medical records or demonstrated by evidence following service. 

After consideration of the physical examinations noted above, the panel determined that the NARSUM and C&P examinations had equal probative value.  At the examinations, the CI was in no apparent distress.  His gait was normal.  Muscle strength and reflexes were normal, and there was no evidence of muscle atrophy.  He reported that his leg conditions caused a moderate effect on exercise and sports.  The STRs also showed that the right leg was the predominant source of pain and impairment.  The panel agreed that a 10% (moderate) rating was appropriate for the right leg and a moderately severe rating of 20% was not justified coded 5399-5312.  IAW VASRD §4.10 (Functional impairment), §4.40 (Functional loss) and §4.59 (Painful motion), when part of the musculoskeletal system becomes painful with use it must be considered disabled.  A disability rating of 10% is warranted when there is satisfactory evidence of functional loss and functional impairment due to pain.  The panel determined that a disability rating of 10% for each leg was appropriate.  However this can only be applied to the left leg.  Panel members agreed that the muscle injury, and painful motion were diagnoses related to the right leg pain and were not separate conditions which could be separately rated IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% disability rating for the right leg condition.  In like manner, the panel recommends a 10% disability rating for the left leg condition.  

BOARD FINDINGS:  In the matter of the right leg condition, the panel unanimously recommends a disability rating of 10%, coded 5399-5312 IAW VASRD §4.73.  In the matter of the left leg condition, the panel unanimously recommends a disability rating of 10%, coded 5399-5312 IAW VASRD §4.73.  There are no other conditions within the panel’s scope of review for consideration.  The panel 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 Leg Pain	5399-5312	10%	
Left Leg Pain	5399-5312	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150909, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170012488, XXXXXXXXXXXXXXXXXX

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,