RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02371
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070224

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Microwave Systems Operator/Maintainer, medically separated for “shin splints” with a disability rating of 0%.

CI CONTENTION:  Review all conditions requested.  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 - 20070103	VARD - 20070719	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Shin Splints	5022	0%	Bilateral Shin Splints 	5262	0%	20060921	
Depression	Not Unfitting	Major Depressive Disorder	9434	10%	20060913	
Tinnitus	Not Unfitting	Tinnitus	6260	10%	20060915	
High Frequency Hearing Loss	Not Unfitting	Hearing Loss Right Ear	6100	0%	20060915	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Bilateral Shin Splints.  The PEB combined the left and right shin splints conditions as a single unfitting condition 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 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.

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s bilateral shin splints condition began in 2003 after attending airborne school.  He received conservative treatment with physical therapy, a restrictive temporary profile, and medications with only minimal relief of his symptoms.  A nuclear medicine bone scan in August 2006 showed no shin abnormalities.  There was no surgical indication.  

At the 21 September 2006 VA Compensation and Pension (C&P) examination, 5 months before separation, the CI reported constant squeezing leg pain increased by physical activity and made better by rest and a muscle relaxer.  The examiner noted an antalgic gait and bilateral shin tenderness.  Bilateral tibia and fibula X-rays were within normal limits.  

The 8 December 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of leg pain worsened by walking, running, jumping, and climbing stairs.  Physical examination showed the legs had no redness, swelling or warmth, and a normal gait.  From the ankle to mid shin there was mild tenderness only elicited by deep (maximal) pressure.  His compartments were soft and non-tender.  Ankles demonstrated full range of motion (ROM) without pain.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral shin splints condition 0%, coded 5022 (periostitis), citing without ratable limitation of motion.  The VA also rated the bilateral shin splints condition 0%, coded 5262 (tibia and fibula, impairment), based on the C&P examination, citing a noncompensable examination.

The panel first considered if the right or left shin splints condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The commander’s statement, profile and other STR evidence did not provide a preponderance of evidence to discriminate the performance limitations attributable to either shin over the other.  Since undue speculation would be required to conclude that impairment from either shin would not have unacceptably interfered with military occupational specialty performance, members agreed each shin was reasonably justified as separately unfitting and warranted separate rating.  The panel agreed there was no evidence of tibia nonunion or malunion with any degree of knee or ankle disability for either leg to justify a rating under code 5262.  There was no evidence of limited ROM or painful motion in the knee or ankle to support a rating for either leg under those respective codes.  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 condition.

Contended PEB Conditions:  Depression, and Right Ear High Frequency Hearing Loss with Tinnitus.  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 profiled or implicated in the commander’s statement, and did fail 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 bilateral shin splints condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended depression, right ear high frequency hearing loss and tinnitus conditions, the panel recommends no change from the PEB determination 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 20170221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180013299, 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