RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxxx	CASE:  PD-2017-01006
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051031

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

CI CONTENTION:  “Review all conditions.”  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 - 20050907	VARD - 20060103	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Leg Pain…	5399-5312	10%	Status Post Fasciectomy of the Lateral Compartment of the Right Lower Extremity	5099-5024	10%	20051214	
			Status Post Fasciectomy of Lateral Compartment of Left Lower Extremity	5099-5024	10%	20051214	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  The PEB combined the right and left lower extremity 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 adjudicated by the PEB.  The evidence for the right and left leg condition is presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Bilateral Leg Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent a lateral compartment fasciotomy of the left lower extremity in January 2002, and then of the right lower extremity in May 2002.  He had a repair of the left fasciotomy in July 2002, and while the surgeries resolved his paresthesias, he continued to have pain with activity.  

The 11 July 2005 MEB NARSUM examination, 4 months prior to separation, noted CI complaints of bilateral leg pain and the inability to run or ruck.  Physical examination was unremarkable with the exception of tenderness to palpation.  Motor strength was not recorded; however, sensory function was intact.  There was no indication of one leg being worse than the other, with compartment pressures elevated bilaterally in anterior and lateral compartments.

At the 14 December 2005 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported pain and swelling in both legs when running and that he could only walk up to half a mile before stopping due pain.  Physical examination showed no evidence of muscle inflammation or arthritis involving any weight bearing or peripheral joints.  The CI had a normal gait with normal feet and lower extremity pulses present.  

The panel first considered whether each leg condition, when decoupled from the combined PEB adjudication, remained separately unfitting as established above.  Both legs were considered to fail retention standards and were implicated in the NARSUM, and profiled.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either leg over the other.  Since undue speculation would be required to conclude that impairment from either leg would not have unacceptably interfered with the CI’’s duty performance, members agreed that each leg was reasonably justified as separately unfitting.  

The panel then considered its rating recommendation for each leg based on the above evidence.  The PEB rated the bilateral leg pain 10%, analogously coded 5399- 5312 (Group XII muscle injuries), rated as moderate impairment. The VA rated each leg 10%, analogously coded 5099- 5024 (tenosynovitis), based on the C&P examination, citing rating for pain with prolonged use.  Members considered that the objective findings and associated disability for each leg were nearly identical, and agreed that the respective ratings should therefore be the same.  A 10% rating under code 5312 stipulates moderate impairment of muscle function, but since there was no report of muscle atrophy or diminished muscle strength, the panel agreed that code 5312 code was less reflective of the CI’s condition than code 5024.  Therefore, members concluded that a 10% rating for each leg, and no higher, was justified based on functional loss and painful motion, IAW §§4.40, 4.45, and 4.59.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% each, for the right and left leg conditions, coded 5099‑5024.

BOARD FINDINGS:  In the matter of the bilateral leg pain, the panel recommends that each joint be separately adjudicated as follows:  an unfitting right leg condition, coded 5099-5024, and rated 10%; and an unfitting left leg condition coded 5099-5024 and rated 10%, both IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Leg Pain	5099-5024	10%	
Right Leg Pain	5099-5024	10%	
COMBINED	20%	

, xxxxxxxxxxxxxxxxxxxxx

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Dear xxxxxxxxxxxxxxxxxxxxxxxx:

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