RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxxx	CASE:  PD-2017-02339
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071209

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “chronic pain secondary to healed stress reactions of the right distal tibia and the left femoral neck” with a disability rating of 0%. 

CI CONTENTION:  “Fracturing of 2 bones in a short period of time was more detrimental than a 10% rating…”  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 - 20071005	VARD - 20080214	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Secondary to Healed Stress Reactions of the Right Distal/Tibia and the Left Femoral Neck	5099-5003	0%	Right Distal Tibia stress Fracture with Residual Pain	5262-5003	10%	20070724	
			Left Femoral Stress Factor with Residual Mid Pain	5299-5252	0%	20070724	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Pain Secondary to Healed Stress Reaction of the Right Distal Tibia (Ankle) and the Left Femoral Neck (Hip).  The PEB combined the right ankle and left hip conditions under a single disability rating, coded analogously to 5003 (arthritis, degenerative) and rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  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 and MEB narrative summary (NARSUM), the CI was diagnosed with a left femoral neck stress fracture in September 2005 during basic training, and a right ankle stress fracture in October 2006.   Despite conservative treatment, he continued to have right ankle and left hip pain.  The commander’s statement dated 20 July 2007, indicated the CI’s disability impacted the performance of infantryman duties with the inability to move with a fighting load over 2 miles, wear required gear, construct a fighting position, or do 3-5 second rushes.  

Right Ankle Pain.  At a primary care visit on 22 January 2007, the CI reported ankle pain worsened by running activities.  On examination, there was full active range of motion (ROM), normal strength, and anterior tenderness with mild sinus tarsi syndrome over the medial ankle.  An ankle MRI on 25 January 2007 showed findings consistent with a distal tibia fracture without a mass identified.   He was treated with crutches and a controlled ankle motion walker, and by 20 March 2007, X-rays showed a normal right ankle.  

During the 24 July 2007 MEB NARSUM examination, 4 months prior to separation, the CI complained of continued right ankle pain.  Physical examination showed full active ROM on “the right-hand side of the ankle and at the knee.”  There was some mild tenderness of the anterior medial tibia with no gross deformity or abnormal ligamentous findings, and motor and sensory examinations were normal. 

At the VA Compensation and Pension (C&P) examination on the same day, the CI reported right ankle discomfort with prolonged walking and increased activity.  The examiner recorded a normal gait and the ability to heel and toe walk. The right ankle appeared generally stiff but there was no tenderness and strength was normal.  Active dorsiflexion was to 15 degrees (normal 20) and plantar flexion to 20 degrees (normal 45) with mild pain, but no ROM degradation with repetition.  

Left Hip Pain.  The MEB NARSUM examiner noted CI complaints of intermittent left hip pain, and documented full active ROM “with normal hip flexion, hip extension, internal and external rotation when compared to the contralateral side.”  Motor and sensory findings were normal and there was no evidence of instability.  

At the C&P examination, the CI reported slight hip pain with prolonged walking and cold weather.  The examiner documented a non-antalgic gait and a normal appearing, non-tender left hip with full muscle strength.  Active flexion was to 90 degrees (normal 125) and abduction to 30 degrees (normal 45).  Although mild pain and stiffness was noted during motion, there was no change in ROM after repetition. 

The panel first considered whether the right ankle and left hip conditions remained separately unfitting, having been de-coupled from a combined PEB adjudication.  In this case, only the right ankle condition was profiled, but both conditions were considered to fail retention standards.  Additionally, the commander’s statement did not provide any information which would permit the panel to discriminate the performance limitations attributable to either the right ankle or the left hip.  Since undue speculation would be required to conclude that impairment from either condition would not have unacceptably interfered with the performance of military duties, members agreed that each condition was reasonably justified as separately unfitting.

The panel directed attention to its rating recommendations based on the above evidence.  As noted above, the PEB rated the bundled right ankle and left hip conditions 0%, analogously coded 5099-5003, citing the USAPDA pain policy and minimal/intermittent pain.  The VA rated the right distal tibia stress fracture with residual pain 10%, dual coded 5262-5003 (tibia and fibula, impairment of-arthritis, degenerative), based on the C&P examination, citing painful or limited motion of a major joint or group of minor joints.  The VA also rated the left femoral stress fracture with residual mild pain 0%, analogously coded 5299-5252 (thigh, limitation of flexion), based on the C&P examination, citing a noncompensable evaluation unless thigh flexion is limited to 45 degrees, or extension to 5 degrees.

The panel considered the rating for the right ankle, and noted that the CI complained of painful motion and had moderately limited ankle ROM at the C&P examination.  The panel considered different rating options under codes 5099-5003, 5299-5262, and 5271 (ankle, limited motion of), and determined that code 5099-5003 was reasonable and appropriate for documented painful motion.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right ankle condition, analogously coded 5099-5003.  

The panel considered the rating for the left hip condition, and noted that while the stress fracture had healed and the CI returned to duty, the VA examiner recorded decreased ROM to 90 degrees with slight pain.  While there was slight painful motion in the absence of a ratable limitation of motion, panel members agreed it was a close call for a 10% rating under code 5099-5003. However, the panel adjudged that the use of analogous code 5299-5255 (femur, impairment of: malunion of: with slight hip disability) with a 10% rating appropriately captured the CI’s clinical course and examination findings.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the chronic left hip pain post stress fracture of the femoral neck condition, analogous coded 5299-5255.  

BOARD FINDINGS:  In the matter of the right ankle condition, the panel recommends a disability rating of 10%, coded 5003-5003 IAW VASRD §4.71a.  In the matter of the left hip condition, the panel recommends a disability rating of 10%, coded 5299-5255 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	
Chronic Pain Secondary to Healed Stress Reaction of the Right Distal Tibia	5099-5003	10%	
Chronic Pain Secondary to Healed Stress Reaction of the Left Femoral Neck	5299-5255	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170302, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190010002, 

Dear xxxxxxxxxxxxxxxxxxxx:

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