RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX 	CASE:  PD-2017-05597
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070828

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E1, Trainee, medically separated for “stress fracture of the right tibial medial plateau, left tibial plateau and right distal femur” with a disability rating of 10%.   

CI CONTENTION:  “The age I had limit my ability to find a stady [sic] job and lower the pain when standing or walking for certain amount of time.”  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 - 20070803	VARD - 20080222	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Stress Fracture Right Tibial Medial Plateau, Left Tibial Plateau and Right Distal Femur 	5099-5003	10%	Residuals, Healed Left Tibial Plateau Stress Fracture	5262	10%	20071222	
			Residuals, Healed Right Tibial Plateau Stress Fracture	5262	10%		
			Right Distal Femoral Stress Fracture	5255	0%		
Developmental Deformities Bilateral Lower Extremities	Subsumed with Above	External Rotational Deformity Lower Extremities	5252	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  The PEB combined the right tibia, left tibia and right femur conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 10%.  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.  

Right and Left Tibial Medial Plateau and Right Distal Femur Stress Fractures.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI experienced an onset of knee pain in basic training (7 months before separation).  All STR provider entries were directed at left knee pain, although he later complained of right thigh pain (hip joint pain specifically denied).  There were no outpatient STR clinical notes that corroborated an associated complaint of right knee pain; although, at the time of the MEB and NASRSUM, he reported bilateral knee and leg pain.  He was diagnosed by bone scan with the above listed stress fractures, and did not respond adequately to a trial of non-weight bearing and conservative treatment to resume training.  

Ample STR provider entries recorded grossly normal range of motion (ROM) of both knees and the right hip, with no entries to the contrary, and there was documentation of painful motion of the left knee, but not the right.  There was no note of bilateral knee/tibial or right thigh tenderness, and ample documentation of a normal gait (after initial treatment).  The absence of effusion, joint impingement (locking), instability, or other VASRD-ratable findings for either knee was noted, and there was no evidence of additional ratable findings for the right hip.

The 12 July 2007 MEB NARSUM examination, 2 months prior to separation, documented chronic daily lower extremity pain and discomfort “a little more than half the time,” rated at 2-5/10 and worse in the left knee, and resulting in an “inability to tolerate impact and running activities.”  The physical examination recorded a normal gait, tenderness of the distal right femur (conversely the thigh examination was described as “unremarkable”), tenderness of the bilateral knees and upper tibias, “hips without pain, with full ROM,” and no note of effusion, instability, or impingement of the knees.  Measured knee ROM was bilateral flexion to 120 degrees (normal 140) and bilateral extension to 0 degrees (normal), specifying the absence of painful motion for either knee.  Measured ankle ROM revealed bilateral dorsiflexion to 15 degrees (normal 20) and bilateral plantar flexion to 45 degrees (normal), without note of painful motion.  The MEB submission and the commander’s performance statement listed all three of the above stress fractures without elaboration of separate fitness implications.  The L3 profile listed only the left tibial stress fracture (in addition to the rotational deformity addressed below).  

The 22 December 2007 VA Compensation and Pension (C&P) examination, 4 months after separation, stated, “He still gets bilateral lower leg pain and right upper leg pain with prolonged walking.  No complaints on the right hip.”  The physical examination recorded a normal gait, bilateral knee tenderness, no effusion, no instability, no impingement, and “full [ROM] of both hips without pain, normal right hip exam.”  There were no positive findings noted for the tibias or ankles.  Measured knee ROM was bilateral flexion to 140 degrees and bilateral extension to 0 degrees, specifying painful motion as present on the left but absent on the right.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s consolidated rating, as elaborated above, cited application of the US Army Physical Disability Agency pain policy.  The VA, based on the C&P examination, rated the three stress fractures separately as charted above.  The left and right tibial plateau stress fractures were rated 10% each under code 5262 (tibia and fibula, impairment of), citing the applicable criterion for “slight” contiguous knee disability.  The right distal femur stress fracture was rated separately at 0% under code 5255 (femur, impairment of), citing the failure to satisfy the minimum 10% criterion for “slight” contiguous hip disability.  Codes 5262 and 5255 offer higher ratings of 20% for “moderate” and maximum 30% for “severe” contiguous joint disability.   

The panel first addressed the issue of whether each of the stress fractures constituted a condition that was reasonably justified as separately unfitting as elaborated above.  With regard to the right distal femur stress fracture, members agreed there was no performance based evidence for concluding that it was separately unfitting at the time of separation; and, furthermore, that there was no ratable criterion in evidence to support more than a 0% rating even if conceded as separately unfitting.  No associated thigh pain was referenced in the NARSUM or C&P examinations, and both specified that there was no contiguous hip pain or abnormal findings.   

Having so agreed, the panel next deliberated whether the left and right tibial plateau stress fractures were reasonably justified as separately unfitting.  Members agreed that there was only a very equivocal basis for concluding that the right tibial plateau stress fracture was sufficiently justified as separately unfitting, considering the lack of reported right knee or lower leg pain in the source STR clinical notes and the fact that it was never profiled.  Furthermore, notwithstanding some associated tenderness, the evidence indicated there was no painful motion, significant ROM limitation, or any other objective finding for the right knee or tibia that would result in functional impairment, or that would support a ratable criterion for more than a 0% rating even if conceded as separately unfitting.  In consideration of these facts, members agreed that the contribution of the right lower extremity to the overall unfitness was such that it was fairly subsumed as an additional, and not separately ratable, major joint consistent with the 10% criterion (“2 or more major joints”) of code 5003.  After due deliberation, considering all evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the multiple lower extremity stress fractures.

Subsumed PEB Condition: External Rotational Deformity Lower Extremities.  The panel’s charge with this condition was to assess the fairness of the PEB’s determination that it was not eligible for separate rating.  In order to recommend additional rating, the panel would have to conclude that the condition was permanently service aggravated, that it was reasonably justified as separately unfitting as elaborated for the stress fractures, and additionally identify at least one VASRD-ratable criterion.  The panel determined that it was the resulting stress fractures, not the EPTS deformity itself, which were subject to service aggravation, and there was no clinical rationale for concluding that the natural progression of the developmental deformity would have been altered by the brief period of military service.  It was further concluded that the only performance-based evidence for assessing fitness reflected functional limitations from the stress fractures, not the EPTS deformity itself.  As elaborated for the stress fracture ratings, any ratable finding attributable to the developmental deformity would constitute a violation of VASRD §4.14 (avoidance of pyramiding) if applied for separate rating.  The condition was thus appropriately subsumed in the same rating for the unfitting stress fractures.  After due deliberation, considering all evidence and with deference to reasonable doubt, the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the developmental deformity of the lower extremities.

BOARD FINDINGS:  In the matter of the service-combined left tibial plateau, right tibial plateau, and right distal femur stress fractures, the panel recommends no change in the PEB adjudication.   In the matter of the service-subsumed developmental rotational deformity of the lower extremities, 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.  

PD-2017-05597

AR20190009414, XXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXX

	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.

D-2017-05597