RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05936
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20070517

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Patriot Operator/Maintainer, medically separated for “bilateral exertional compartment syndrome” with a disability rating of 0%.  

CI CONTENTION:  “Review all conditions.”  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 - 20070322	VARD - 20070616	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Exertional Compartment Syndrome	5399-5312	0%	Right Leg Compartment Syndrome 	5399-5312	10%	20071128	
			Left Leg Compartment Syndrome 	5399-5312	10%	20071128	
Plantar Warts	Not Unfitting	Plantar Warts	7819	NSC	20071128	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Bilateral Exertional Compartment Syndrome.  The PEB combined the left and right lower extremity conditions under a single disability rating, coded analogously to 5312 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 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 right and left lower extremity conditions is presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent left lower extremity (LLE) compartment release in August 2005 and right lower extremity (RLE) compartment release in September 2006.  He continued to experience “severe pain over his deep posterior and superficial posterior compartments” of the RLE.  Further surgery was offered for the RLE, but the CI opted out.  

The 20 February 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant 4/10 RLE pain that worsened with activity to 8-9/10.  Physical examination showed mild tenderness of the anterolateral, deep posterior, and superficial posterior compartments of the RLE.  Strength was normal for both lower extremities.  Range of motion (ROM) showed dorsiflexion of 15 degrees (normal 20) and plantar flexion of 45 degrees (normal), bilaterally, with full inversion and eversion.  

At the 3 May 2007 VA Compensation and Pension (C&P) evaluation, 2 weeks before separation, the CI reported the inability to walk briskly.  Physical examination revealed a slightly antalgic gait to the left.  The CI’s shins were mildly tender, bilaterally, but there was no active swelling or effusion noted.  The examiner reported “a 4/5 push and pull examination on both of his shins and also 2/4 sensory reflexes on both of his shins.”  ROM testing showed plantar flexion of 35 degrees and dorsiflexion of 15 degrees with pain, bilaterally.  He “exhibited mild manifestation of pain and stiffness on his legs bilaterally.”  The examiner opined that the CI would have mild physical impairment during flare-ups mostly manifested by pain.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral leg condition 0%, coded 5399-5312 (analogous to muscle group XII function), citing accordance with the US Army Physical Disability Table of Analogous Codes for slight muscle injury.  The VA rated the LLE and RLE conditions 10% each, coded 5399-5312, based on the C&P examination, citing evidence of functional loss due to pain, which affected the performance of normal working movements of the right and left lower extremities with normal excursion, strength, speed, coordination and endurance.  

The panel first considered if the LLE and RLE conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  In this case, both leg conditions were considered to fail retention standards, both were implicated by the VA C&P and NARSUM examinations, and both were profiled.  The evidence reasonably justified that the functional limitations of each separate leg contributed to the CI’s inability to perform his military duties.  Therefore, panel members agreed each leg was separately unfitting.  Accordingly, a separate disability rating is recommended.  

The panel agreed the evidence supported a 10% rating for each leg for moderate muscle dysfunction manifested by 4/5 muscle weakness IAW VASRD §4.56 (cardinal signs and symptoms of muscle disability).  Functional loss due to pain was also present.  There was no evidence of moderately severe muscle disability, such as prolonged hospitalization for treatment, to support an increase in the rating level to the next higher 20% level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for each leg condition, coded 5399-5312.  

Contended PEB Condition:  Plantar Warts.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement nor judged to fail retention standards.  At the 7 February 2007 primary care clinic visit, the examiner recorded that the CI’s plantar warts responded well to treatment and the CI was more comfortable.  There was no performance-based evidence from the record to show that the condition 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 the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the bilateral leg condition, the panel recommends a disability rating of 10% for the LLE and a 10% rating for the RLE, each coded 5399-5312, with a combined disability rating of 20%.  In the matter of the contended plantar wart condition, the panel agrees that it cannot recommend it for additional disability rating.  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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Leg Exertional Compartment Syndrome	5399-5312	10%	
Left Leg Exertional Compartment Syndrome	5399-5312	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170510, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008261, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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