RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05883
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Indirect Fire Infantryman, medically separated for “bilateral leg pain” with a disability rating of 0%.   

CI CONTENTION:  “Veteran was discharged with severe PTSD and TBI and 0% was not a high enough rating.  Veteran has 100 percent permanent disability through dept of veteran affairs.  I request PDBR to review all conditions.” 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 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 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 – 20090317 	VARD - 20080930	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Leg Pain	5022	0%	Bilateral Tibial Periositis with Chronic Strain	5022	0%	STR	
Right Knee Patellar Tendinitis	Not Unfitting	Right Knee Patellar Tendinitis	5257	0%	STR	
Recurrent Lumbosacral Strain		Lumbosacral Strain	5237	0%	STR	
Left Ear SNHL		Left Ear Hearing Loss	6100	0%	STR	
Right Ear HFSNHL		Right Ear Hearing Loss	6100	NSC	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Bilateral Leg Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI experienced bilateral lower leg pain with running, left greater than right beginning in approximately March 2006.  He was evaluated by orthopedics for compartment syndrome and testing was negative.  A bone scan on 19 October 2006 showed increased uptake in the bilateral tibiae, left greater than right.  A repeat bone scan showed periostitis of the left tibia.  The right tibia was normal.  Range of motion (ROM) measurements taken by physical therapy on 20 September 2007, 6 months prior to separation, showed flexion of each knee to 135 degrees (normal 140) and extension of 0 degrees (normal 0), after repetition.  The examiner stated “no ROM limitations.”  Ankle ROM following repetition showed dorsiflexion of 15 degrees (normal 20) and plantar flexion of 45 degrees (normal 45) for each ankle with no pain during measurements.   The 13 September 2007, 5 months prior to separation, profile listed chronic bilateral tibial stress reaction.  The 18 October 2007 commander’s statement implicated the bilateral stress reactions as impairing the CI’s successful duty performance.  

The 15 November 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of pain and swelling in both shins with running or road marches.  Physical examination showed a normal gait.  There was irregularity of the right and left tibiae with tenderness, and no crepitus.  Leg color was normal.  There was no tibial pain with ankle dorsiflexion or plantar flexion, and no swelling of the right knee.  There was tenderness of the lower patella and infrapatellar tendon [over the anterior tibia.  Right knee ROM was 0-140 degrees (normal).  There was no instability and testing for meniscal pathology was negative, but there was pain with rotation of the knee at the inferior patellar area.  

There was no VA Compensation and Pension examination proximate to separation in evidence.  At a 2 June 2008 VA outpatient physical examination to establish care, 4 months after separation, the extremities showed full ROM without tenderness.  Strength, reflexes, and pulses were normal.  At a primary care examination on 26 November 2008, 10 months after separation, physical examination showed no swelling or tibial tenderness.  Motion did not cause discomfort.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral leg condition 0%, coded 5022 (periostitis), citing a normal gait and normal ROM of the ankles and knees.  The VA rated the bilateral tibial periostitis condition 0%, coded 5022, based on the STR, citing a non-compensable evaluation is assigned unless there is objective evidence of painful or limited motion of a major joint or group of minor joints.  The panel first considered if each of the right and left leg pain conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting.  The bilateral legs were profiled and implicated in the commander’s statements and both failed retention standards.  The panel concluded that each of the right and left leg pain conditions was reasonably considered separately unfitting and eligible for disability rating consideration.  

There was no evidence of painful or limited motion of the left ankle or knee to support a higher rating than 0% for the left knee condition.  However, there was evidence of painful motion of the right knee at the MEB NARSUM examination to support a 10% rating for the right leg condition coded 5099-5022.  The examination of the right knee was otherwise normal.  Although the CI had a history of a separate injury to the right knee in 2003, there is no way to determine if his knee pain at the time of separation was due to a separate knee injury or related to the tibial periostitis condition without resorting to speculation.  The panel considered alternatively rating the right knee coded 5299-5262 (analogous to tibial impairment), an analogous code for shin splints, however, the next higher rating for moderate knee or ankle disability was not supported based on the CI’s normal gait at the MEB NARSUM examination.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the left leg pain condition and 10% for the right leg condition, both coded 5099-5022.  

Contended PEB Conditions:  Right Knee Patellar Tendinitis, Lumbosacral Strain, Left Ear SNHL (sensorineural hearing loss) and Right Ear HF (high frequency) SNHL.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The right knee and lumbosacral strain conditions were not profiled, implicated in the commander’s statement, and did not fail retention standards.  The bilateral hearing loss condition was profiled H2 and met 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 leg condition, the panel recommends that each leg be separately adjudicated as follows: an unfitting right leg condition coded 5099-5022 and rated 10%, and an unfitting left leg condition, coded 5099-5022 and rated 0%, both IAW VASRD §4.71a.  In the matter of the contended right knee patellar tendinitis, lumbosacral strain, left and right (high frequency) ear sensorineural hearing loss conditions, the panel recommends no change from the PEB determinations as not unfitting.  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	
Right Leg Pain 	5099-5022	10%	
Left Leg Pain	5099-5022	0%	
COMBINED	10%	

AR20200004319

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.