RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-00013
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20040315

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Small Computer Systems Operator, medically separated for “bilateral tibial stress fractures, right greater than left” with a disability rating of 10%.

CI CONTENTION: “Because it’s wrong. It was a service related injury that has left me in permanent pain. Both legs are affected. Unable to complete neuro test, it’s too painful. There are following attachments.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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. The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate. The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20040112	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Tibial Stress Fractures…	
5022-5003	
10%	
No VA Examination Proximate to Separation in Evidence	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: NA	

ANALYSIS SUMMARY:

Bilateral Tibial Stress Fractures. The PEB combined the bilateral tibial stress conditions under a single disability rating, coded 5003 (arthritis, degenerative), 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 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 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 the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was first seen for bilateral tibial pain in 2002 with no reported history of direct trauma or injury. A bone scan performed on 10 October 2002 demonstrated increased uptake in the right tibia indicating abnormal boney involvement. The 7 November 2003 MEB NARSUM examination, 4 months prior to separation, noted continued CI complaints of bilateral leg pain. Physical examination revealed mild tenderness over the proximal portion of both tibias but no evidence of surrounding soft tissue swelling or palpable mass. Range of motion (ROM) of adjacent joints (knees and ankles) were near normal. There was no VA Compensation and Pension examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the bilateral lower extremity condition 10%, dual coded 5022-5003 (periostitis- arthritis, degenerative). Members first considered whether each lower leg, having been de- coupled from the combined PEB adjudication, remained independently unfitting and ratable. Both legs were listed on the limited duty form and considered to fail retention standards. Although the STR indicated that the right leg was generally worse than the left, there were several assessments of equivalent bilateral pain as well as objective physical findings of bilateral tibial tenderness. Since evidential findings did not overwhelmingly center around either leg independently, the panel found it reasonable to surmise that the combination of pathology from both lower extremities rendered the CI unfit to perform in his military specialty.

The panel next considered the proper coding for a combined rating. With the absence of compensable ROM limitations for any lower extremity joints, members agreed that either VASRD code of 5022 (periostitis) or 5262 (tibia and fibula; impairment) could be supported in this case. However, the positive bone scan only on the right leg negated the use of code 5022 in a bundled situation. The panel next determined that while analogous code 5299-5262 was best utilized in this case at a level no greater than “slight” impairment at 10%, this provided no additional benefit to the CI. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB’s adjudication for the bilateral tibial stress fracture condition.

BOARD FINDINGS: In the matter of the bilateral tibia condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends 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 20161116, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN   REPLY   REFER  TO:
1850
CORB: 003 20May20

From: 
Director, Secretary of the Navy Council of Review Boards

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr dtd 23 Oct 18

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate  action.

2.	On 20 March 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR ofno change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation  Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.

Copy to: PDBR