RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03732
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20050218

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Diver, medically separated for “chronic bilateral lower extremity pain, left greater than right, secondary to chronic exertional compartment syndrome,” with a disability rating of 10%.

CI CONTENTION:  His lower extremity conditions were not properly rated and his gastrointestinal conditions should have been rated.  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 – 20050130	VARD - 20050926	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Lower Extremity Pain…	5099-5003	10%	Bilateral Chronic Exertional Compartment Syndrome	5099-5010	10%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Bilateral Lower Extremity Pain.  The PEB combined the left and right lower extremity conditions under a single disability rating, coded analogously to 5003 and rated 10%, with likely application of the US Army Physical Disability Agency 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.  The evidence for the left and right lower extremity conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent an emergent fasciotomy in February 2002.  “Since that time, he has had persistent lower extremity pain, left greater than right, exacerbated by chronic ankle sprains.”  Due to continued pain, the CI underwent a diagnostic arthroscopy in October 2004, which failed to show any evidence of instability, impingement, osteochondral defects, or any other significant intra-articular pathology.   

The 12 July 2004 MEB NARSUM examination, 7 months prior to separation, noted complaints of bilateral lower extremity pain.  Physical examination showed full range of motion (ROM) of all joints.  His fasciotomy scars were well healed as were the arthroscopic portals.  The CI failed to report to a scheduled VA Compensation and Pension (C&P) examination.  

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the bilateral lower extremity condition 10%, coded analogous to 5003 (degenerative arthritis), citing pain as constant and worsened with activity, fasciotomy scars, and normal ROM.  The VA also rated the bilateral lower extremity condition 10%, coded analogous to 5010 (traumatic arthritis), based on the STR, citing painful or limited motion of a major joint or group of minor joints.  

The panel first considered if the left and right lower extremity conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled left and right lower extremity conditions were reasonably considered separately unfitting.  The left and right leg conditions were never addressed separately in the clinical visits, the physical profile, or the commander’s comments.  The panel then considered its rating recommendation for the unfitting lower extremity conditions at the time of separation.  The NARSUM physical examination showed full ROM with no decrease in strength, no atrophy, and no limitations on the function of the leg muscles.  After due deliberation, considering all of 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 lower extremity condition.  

BOARD FINDINGS:  In the matter of the bilateral lower extremity condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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 20170401, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180006641, 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