RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00864
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Military Police, medically separated for chronic mechanical low back pain and chronic bilateral shin splints, rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  The CI believes his rating should be higher and contends for his hearing loss.  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 - 20050402	VARD - 20041202	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain with Left Sacroiliitis…	5299-5236	10%	Chronic Mechanical Low Back Pain	5237	NSC	20040917	
Chronic Bilateral Shin Splints	5022	0%	Shin Splints, Bilateral	5299-5262	NSC	20040917	
Moderate Conductive Hearing Loss, Right Ear	Not Unfitting	Hearing Loss, Right Ear	6100	NSC	20040928	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Mechanical Low Back.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition started in early February of 2002 without any specific injury or trauma.  

Lumbosacral spine imaging on 12 August 2002 was normal.  Magnetic resonance imaging (MRI) of the lumbar spine on 31 October 2002 showed the alignment of the spine was maintained.  There was disc desiccation and bulging disc at L5 S1, associated with mild foraminal stenosis on the right side.  No disc protrusion or extrusion were seen and the other disks were well hydrated.  

The 15 October 2003 MEB NARSUM examination, 5 months prior to separation, noted complaints of pain in the hips and low back on sit-ups and on heavy lifting and climbing in vehicles.  Physical examination showed tenderness in the left sacroiliac region and paravertebral lumbar region.  Range of motion (ROM) of the low back exhibited flexion to 90 degrees (normal) and combined ROM of 240 degrees (normal).  

At the 17 September 2004 VA Compensation and Pension (C&P) evaluation, 5 months after separation, the CI reported difficulty standing for long periods of time.  Bending and stooping gave him the most problems, carrying heavy items or standing for long periods of time over an hour also increased symptoms.  Physical examination of the thoracolumbar spine revealed 90 degrees of flexion (normal) and combined ROM of 240 degrees (normal) without pain in any direction.  No spasms were noted. Mild tenderness to palpation was present.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5299-5236 (analogous to sacroiliac injury and weakness), citing no neurologic abnormality, and combined thoracolumbar range of motion 290 degrees with localized tenderness.  The VA did not service-connect the low back condition, based on the C&P examination 5 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.  

Although there was insufficient limitation of motion to support a minimum rating, the panel agreed a 10% rating was justified for the presence of painful motion, tenderness and/or spasm.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  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 low back condition.  

Bilateral Shin Splints.  The PEB combined the right and left shin splints conditions under a single disability rating, coded 5022 (periostitis) and rated 0%.  This 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’s initial charge in this case was therefore directed at determining if 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 evidence for the right and left shin splints conditions are presented jointly, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the STR and the MEB NARSUM, the CI’s bilateral shin splint condition began in early February of 2002 without any specific injury or trauma.  A three-phase bone scan in October 2002 showed evidence of bilateral shin splints with no stress fractures.  At the 15 October 2003 MEB NARSUM examination, 5 months prior to separation, physical examination showed “some tenderness anteriorly in both lower tibia.”  Right knee flexion 145 degrees (normal 140), extension 0 degrees (normal), left knee flexion 145 degrees (normal 140), extension 0 degrees (normal), right ankle dorsiflexion 10 degrees (normal 20), plantar flexion 45 degrees (normal), and left ankle dorsiflexion 10 degrees (normal 20), plantar flexion 30 degrees (normal 45).

At the 17 September 2004 VA Compensation and Pension (C&P) evaluation, 5 months after separation, examination showed no evidence of deformity.  No areas of acute tenderness to palpation.  Mild tenderness to palpation along the anterior crest. No point tenderness.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral shin splint condition 0%, coded 5022 (Periostitis), citing no limitation of motion.  The VA did not service connect the bilateral shin splint condition, based on the C&P  examination 5 months after separation, citing no permanent residual or chronic disability subject to service connection was shown by the service medical records or demonstrated by evidence following service.  

The panel first considered if shin splints condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The commander’s statement, profile and other STR evidence did not provide sufficient information which would permit the panel to discriminate the performance limitations attributable to either shin over the other.  Since undue speculation would be required to conclude that impairment from either shin would not have unacceptably interfered with MOS performance, members agreed that each shin was reasonably justified as separately unfitting.  There was no evidence of nonunion or malunion of the tibia with any degree of knee or ankle disability in either leg to justify any rating under code 5262 (tibia and fibula, impairment of).  There was no evidence of limited ROM of the knee or ankle or evidence of painful motion to rate under any of the respective codes in either leg.  Antalgic gait was not recorded on any examination proximate to separation to provide evidence of painful motion with functional loss supporting a minimum 10% rating (based on §4.59, §4.40 and §4.45).  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 bilateral shin splint condition.  

Contended PEB Condition:  Hearing Loss, Right Ear.  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 profiled, but as an H2 hearing profile (not unfitting) and so was not judged to fail retention standards.  The condition was implicated in the commander’s statement citing the requirement for no assignment in hazardous noise areas defined as >85 dBA.  The panel noted that DoDI 6055.12 dictates that all military and civilian workers shall, if possible, be in a steady-state level less than 85 dBA and if that is not possible they are to be provided with hearing protectors to accomplish this or administrative controls are to be in place to achieve this level.  The panel notes that the hazardous noise exposure requirements on the permanent profile are redundant considering DOD policy.  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 low back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the bundled bilateral shin splint condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended hearing loss, right ear condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There are 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 20160919, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170017104, 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 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,					      
						      					
Enclosure