RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01961
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070204

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Wheeled Vehicle Mechanic, medically separated for “bilateral lower extremity pain” with a disability rating of 10%.   

CI CONTENTION:  “Multiple fractures in left and right tibia.”  The CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20061025	VARD - 20070316	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Lower Extremity Pain	5099-5003	10%	Shin Splint and Stress Fractures of the Left Distal Fibula	5299-5262	10%	20061212	
			Shin Splint and Stress Fractures of the Right Distal Fibula	5299-5262	10%	20061212	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Bilateral Lower Extremity Pain.  The PEB combined the left and right lower extremity conditions as a single unfitting condition coded analogous to 5003 (degenerative arthritis) and rated 10%.  The 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 the PEB’s approach of 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 left and right lower extremity conditions is presented together with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s left and right lower extremity conditions began in October 2005 after running.  A bone scan showed bilateral shin splints and bilateral stress fractures of the tibiae.  At the 24 August 2006 MEB NARSUM examination, 6 months prior to separation, the CI complained of constant pain in both lower legs.  Aggravating activities included walking long distances, crawling, crouching, bending, climbing, lifting, maneuvering stairs and running.  His physical examination (PE) revealed tenderness along both tibial shafts (lower legs) as well as slight edema.  Range of motion (ROM) testing of both ankles revealed painful and decreased dorsiflexion of 0 degrees (normal 20).  Bilateral ankle plantar flexion was normal.  A follow-up bone scan revealed resolution of the right stress fracture, but continued to reveal the left-sided tibial stress fracture and severe bilateral shin splints.  

At the 12 December 2006 VA Compensation and Pension (C&P) examination, 2 months prior to separation, the CI reported continued bruising and swelling of both lower legs.  His PE revealed tenderness along the entire length of both tibias.  Continuous joints at either end of both tibias were essentially normal.  There was no evidence of local edema.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral lower extremity condition 10%, analogously coded 5099-5003, citing the US Army Physical Disability Agency pain policy.  The VA separately rated the right and left lower extremity conditions 10% each, analogously coded 5262 (tibia and fibula, mal-union of: with slight knee or ankle disability), based on the C&P examination, citing mal-union of the tibia and fibula with slight knee or ankle disability and tenderness.  

Panel members considered whether each lower extremity could be reasonably justified as separately unfitting.  Members agreed that under the most probative examination, the evidence of tenderness along the “entire length of both tibias” coupled with its association with increased physical activity as well as prior adverse radiological evidence, that such described findings would have rendered the CI unable to meet the demands of his military training even if confined to a single lower extremity.  With the absence of compensable ROM limitations about the continuous joints of the lower extremities, panel members considered separate VASRD codes of either 5022 (periostitis) or 5262 (tibia and fibula; impairment).  The prior bone scan evidence of specific and focal uptake clearly revealed the underlying pathology involving the leg bones and thus best coincided with the condition of periostitis.  Therefore, after due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends separate right and left lower extremity disability ratings of 10% each for the associated leg conditions, coded 5099-5022. 

BOARD FINDINGS:  In the matter of the bilateral lower extremity condition, the panel unanimously recommends separate disability ratings of 10% each leg, analogously coded 5099-5022 IAW VASRD §4.71a.  There were 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 Lower Extremity Pain 	5099-5022	10%	
Right Lower Extremity Pain	5099-5022	10%	
COMBINED	20%	

AR20180014720, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear  XXXXXXXXXXXXXXXXXX

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 VeteransAffairs.