RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01692
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040813

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E5, Infantryman, medically separated for “bilateral lower leg numbness” with a disability rating of 10%.

CI CONTENTION:  His rating should have been higher.  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 - 20040405	VARD - 20041018	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Lower Leg Numbness	5399-5312	10%	Left Lower Leg Compartment Syndrome	8599-8523	10%	20040813	
			Right Lower Leg Compartment Syndrome	8599-8523	10%	2040813	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Bilateral Lower Leg Numbness.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral lower leg numbness began in 2001 while the CI was in the honor guard, which involved prolonged standing and carry caskets.  The symptoms were not immediate, but came on 3-4 hours after he finished an activity (prolonged standing, running, walking or lifting heavy items).  The CI reported his legs would go numb from the knees to the ankles with onset of “pins and needles” in his foot limiting his ability to walk.  Symptoms occurred 2-3 times per week in both legs though never simultaneously, without predilection for one leg over the other.  He had no pain, just numbness and tingling.  Conservative management did not bring relief.  A bone scan showed shin splints.  On 17 July 2003, magnetic resonance imaging (MRI) study of the left knee showed a small area of signal abnormality in the posterior horn and body of the medial meniscus most likely representing mucoid degeneration with trace amount of joint fluid.  MRI of the right knee showed mildly abnormal appearance of the mid portion of the anterior cruciate ligament.  On 13 August 2004, X-ray studies showed normal mineralization of the tibia and fibula.  No fractures or osseous abnormalities was demonstrated.  Symptoms did not hinder his military specialty job but he could not run or ruck.  Symptoms improved on profile but recurred when activity resumed.

The 11 March 2004 MEB Neurology NARSUM examination, 5 months prior to separation, noted complaints of feeling pins and needles in his feet, which progressed to his knees bilaterally 2-4 hours after an activity which lasted 1-2 hours resolving on its’ own.  The CI described his legs as “tight” but without evidence of swelling and tender to touch.  There was no pain in between the episodes.  He could walk about one half mile before the pain began.  It had not affected his activities of daily living.  Physical examination showed a normal motor and sensory examination with a normal gait.  A diagnosis of bilateral lower extremity numbness consistent with mild compartment syndrome was rendered.

At the 13 August 2004 VA Compensation and Pension (C&P) evaluation, performed on the day of separation, the CI reported persistent back and bilateral leg pain but he could sustain heavy physical activities without immediate distress.  He had not been receiving treatment for his legs.  Physical examination showed a normal gait.  Leg muscles form and function were symmetric and without muscle or bone tenderness or atrophy.  Sensory perception and motor strength were intact.  Bilateral hip, knee and ankle “range of motion was not compromised” and did not induce painful motion.  No current pathology was recognized.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral lower leg condition 10%, analogously coded 5399-5312 (Group XII. Function:  leg muscles, moderate), citing consistency with mild compartment syndrome.  The VA rated the bilateral lower leg condition 10% for each foot, analogously coded 8599-8523 (anterior tibial nerve (deep peroneal,) paralysis of, moderate), based on the C&P examination the same day as separation, citing incomplete paralysis of foot movements which was moderate.

The PEB combined the right lower leg and left lower leg conditions under a single disability rating, coded 5399-5312 and rated 10%.  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.

In this case, the evidence indicated the right and left lower legs were equally symptomatic, both were implicated by the commander’s statement and permanently L3 profiled.  Physical examination findings were essentially the same with evidence of numbness and tingling of the both legs after activity (prolonged standing, running, walking or lifting heavy items.)  Symptoms improved while on profile but recurred with activity.  The panel concluded there was not a preponderance of evidence in the service records which overcame the presumption that either of the lower legs was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right lower leg and unfitting left lower leg condition at the time of separation.
The panel agreed there was no compensable range of motion or painful motion for the panel’s consideration.  The STR evidence did not document lower leg range of motion, while the C&P examination performed on the day of separation documented bilateral hip, knee and ankle range of motion as “not compromised” which did not induce painful motion.  The panel next considered PEB coding 5312.  A 10% rating is warranted when there is satisfactory evidence of moderate disability of a major joint; a 20% rating warrants moderately severe.  Although conservative treatment had been provided, there was recurring numbness and tingling in both the right and left lower legs that interfered with the CI’s work which were individually unfitting.  However, the CI was able to:  walk with a normal gait; perform his military duties, albeit with suspension of activities; walk one half mile before the onset of pain; perform all activities of daily living; and sensory and motor strength testing were intact.  Therefore, panel members agreed that neither lower leg condition met the moderately severe impairment level to warrant a 20% rating.  The panel also considered VA coding 8523 that rates paralysis of the anterior tibial nerve (deep peroneal).  A mild rating is 0%, moderate rating is 10% and severe is 20%.  The panel agreed that the CI’s condition did not rise to the level of severe per the aforementioned evidence; therefore, this coding provides not rating advantage to the CI.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right lower leg numbness, coded 5399-5312, and a separate 10% rating for the left lower leg numbness, also coded 5399-5312.

BOARD FINDINGS:  In the matter of the right lower leg numbness condition, the panel unanimously recommends a disability rating of 10%, coded 5399-5312 IAW VASRD §4.73.  In the matter of the left lower leg numbness 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	
Left Lower Leg Numbness	5399-5312	10%	
Right Lower Leg Numbness	5399-5312	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161028, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170019751, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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,	
Enclosure