RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01402
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an E4, Financial Management Technician, medically separated for “chronic back pain” rated 10%, and “bilateral shin splints” rated 0%, with a combined 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 - 20070821	VARD - 20080418	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	Disc Bulging L5-S1 and T7-8	5243	10%	20071205	
Bilateral Shin Splints, 	5022	0%	Left Leg Shin Splints	5262	10%		
			Right Leg Shin Splints	5262	10%		
Flat Feet	Not Unfitting	Pes Planus	5276	0%		
Joint Pain, Knee	Not Unfitting	Right Knee Pain	5260	NSC		
		Left Knee Pain	5260	NSC		
Hypertension	Not Unfitting	Hypertension	7101	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40% 	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in early 2006 without precipitating event or injury.  The MRI report dated 24 April 2007 showed mild bulging at L5-S1 and a degenerative disc at T7-8 without herniation.  At the 30 May 2007 physical therapy appointment, 6 months prior to separation, the range of motion (ROM) was recorded as flexion to 85 degrees (normal 90) and combined ROM of 210 degrees (normal 240), with motion limited by pain.  Tenderness was present.  The gait and spinal contour were normal and muscle spasm was absent.  

During the 11 July 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported a bad back which caused tingling.  The physical examination revealed normal ROM with negative testing for nerve root irritation.  The neurological examination was normal.  Tenderness was present.  The 25 July 2007 MEB NARSUM examination noted the above history and examination.  It was thought that the CI’s symptoms would decrease once removed military activities.  

At the 5 December 2007 VA Compensation and Pension (C&P) examination, 3 weeks after separation, the CI reported a 2 year history of back pain attributable to marching with full gear.  Incapacitation was not recorded.  The physical examination showed a normal gait and posture.  The CI was noted to be carrying a large backpack which contained “medical records among other things” and did “not appear to give him any problem carrying this weight.”  The ROM showed flexion of 90 degrees and combined ROM of 205 degrees.  There were no signs of tenderness or pain in his lower back.  The neurological examination was intact.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5242 (analogous to degenerative arthritis of the spine), citing “range of motion limited by pain, with localized tenderness.”  The VA also rated the back condition 10%, but used the 5243 code (intervertebral disc syndrome), based on the C&P examination, citing pain with motion.  The 10% rating assigned by both the PEB and the VA is supported by painful and limited motion.  The criteria for a higher rating were not met.  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 adjudication for the back condition.  

Bilateral Shin Splints.  The PEB combined the left and right shin conditions under a single disability rating, coded 5022 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 bilateral shin conditions is presented jointly, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the STR and MEB NARSUM, the CI’s bilateral shin condition began during or shortly after 2001.  He had been placed on a permanent L2 profile and was able to meet his limited duty requirements until his back pain increased.  

During the MEB examination the CI reported bilateral swelling and pain of the shins after walking “a while.”  The physical examination showed a mildly tender left knee with mild crepitus, but no annotation was made regarding the shins.  The MEB NARSUM noted complaints of continued shin pain bilaterally.  A bone scan 1 week earlier had shown bilateral shin splints which were improved from the original study in 2002.  The physical examination noted that the shins were mildly tender to deep palpation.  

At the C&P examination the CI reported improvement in his pain since cessation of military activities.  He reported daily pain associated with swelling over the anterior compartment (muscle group next to the shin), but very minimal tenderness was noted.  On physical examination there was neither pain nor tenderness present with movement.  Motion of the knees and ankles was pain free.  Flexion of the knees was 130 degrees on the right and 125 on the left (normal 140) with normal extension (0 degrees).  X-rays of the knees, shins, and ankles were normal.  Motion of the ankles showed dorsi-flexion (toes up) of 12 and 14 degrees, right and left respectively, and plantar flexion (toes down) of 40 degrees bilaterally (normal 45).  The CI could walk on his heels and toes without difficulty.  Motion of the ankles and knees was noted to be pain free.  The CI was also noted to be able to squat repetitively.  The examiner also noted that the shin splints caused problems “when the patient was marching or running.  It does not appear to be a difficult, disabling problem today.”  Neither a knee nor an ankle diagnosis was made.  At a second C&P examination on 16 January 2008, done for the hips, the gait remained normal and the CI was able to squat and rise 4 times without difficulty.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral shin splints 0%, coded 5022 (periostitis), citing “without ratable limitation of motion.”  The VA rated the shin splints separately, at 10% for each leg, coded 5262 (tibia and fibula impairment), based on the C&P examination, citing “mild tenderness and swelling.”  The panel noted the examiner did not record the presence of swelling even though the CI reported swelling of the muscles next to the shin, not over the shin.  The NARSUM examiner noted that the shins were mildly tender.  At the time of the VA examination, the CI reported improvement in his symptoms now that he was removed from military duties.  Tenderness over the shins was no longer present, although mild tenderness over the anterior compartments was recorded.  The ROM of the knees and ankles was reduced on the VA examination.  However, it was pain free and the CI was able to squat multiple times without apparent difficulty.  This implies better knee flexion and ankle dorsiflexion than measured.  The gait remained normal.  X-rays were normal.  The totality of evidence showed the bilateral shin condition had resolved or nearly resolved at separation.  Both shins were profiled and found to be medically unacceptable.  Both were found unfitting at separation by the PEB.  The panel determined that while severing the left and right sides for rating purposes is supported by the evidence, a compensable rating is not supported for either separately.  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 adjudication for the bilateral shin splints.  

Contended PEB Conditions:  Flat Feet, Joint Pain of the Knees, and Hypertension.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were on the final profile, although the commander noted the knees were on a permanent profile in December 2005.  The commander also noted the CI performed all in-garrison duties.  He thought that the severity of the CI’s conditions was exaggerated.  All were judged to meet retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the bilateral shin splints and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended flat feet, knee joint pain, and hypertension conditions, the panel recommends no change from the PEB determinations as not unfitting.  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 20170222, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180010932, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	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