RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2018-00231
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060616

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Communications Specialist, medically separated for “chronic leg pain bilaterally following compartment releases” with a disability rating of 10%.  

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 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 - 20060525	VARD - 20060713	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Leg Pain Bilaterally	5099-5003	10%	Status Post (S/P) Compartment Release, Right Leg	5299-5262	10%	20060612	
			S/P Compartment Release, Left Leg	5299-5262	10%		
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%		
Pes Planus	Not Unfitting	Bilateral Pes Planus S/P Right 3rd Toe Surgical Intervention	5276	30%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Chronic Bilateral Leg Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent bilateral anterior and lateral compartment fasciotomies for chronic exertional compartment syndrome in February 2004.  At an orthopedic evaluation in June 2004, he reported some improvement, but had a recent exacerbation of bilateral leg pain with walking/road marching.  Physical examination showed a tender smooth bump on the left shin, soft muscle compartments bilaterally, and normal sensation and strength.  At an orthopedic follow-up on 4 August 2005, he complained of bilateral leg pain, and the provider noted anterior skin lesions of psoriasis on both legs with well-healed surgical incisions that were somewhat uncomfortable with palpation.  Strength and balance were normal and there was decreased (but not absent) sensation. 

During the 30 August 2005 MEB NARSUM examination, 10 months prior to separation, the CI reported bilateral leg pain with any activity, to include walking.  Physical examination showed some lower extremity psoriatic lesions on the anterior aspects of the legs and well-healed surgical incisions.  There was some muscle herniation on the right lower extremity, which was tender, and there was diffuse tenderness of the anterior and lateral compartments of both lower extremities.  Sensation was decreased, but not absent, in the superficial peroneal distribution bilaterally, and strength was normal.  The examiner determined that the CI failed retention standards due to the bilateral leg conditions.  The 18 November 2005 MEB podiatry examination, 7 months prior to separation, documented a normal gait.  

At the 12 June 2006 VA Compensation and Pension (C&P) examination, 4 days before separation, the CI reported constant pain, weakness, stiffness, fatigue, and lack of endurance in both legs.  He had difficulty navigating stairs, walking and running long distances, or standing for long periods of time, and required a cane.  The examiner noted the CI used a cane, guarded his right lower extremity, and favored the left.  The lower legs were diffusely tender, but there were no muscle herniations, and lower extremity strength and reflexes were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral leg condition 10%, analogously coded 5099-5003 (arthritis, degenerative), citing slight and constant pain according to the US Army Physical Disability Agency pain policy.  The VA  rated the right leg conditions 10% each, both analogously coded 5299-5262 (tibia and fibula, impairment of), based on the C&P examination, citing painful motion of both legs.  The panel first considered whether the left and right leg conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting.  Both legs were profiled and failed retention standards, and the commander’s statement and other STR evidence did not provide information which would permit discriminating the performance limitations attributable to either leg over the other.  Since undue speculation would be required to conclude that impairment from either leg would not have unacceptably interfered with duty performance, panel members agreed that each leg was reasonably justified as separately unfitting.

The panel considered individual ratings for the bilateral leg conditions coded 5399-5312 (Group 12 muscle injury), an analogous coding scheme for lower extremity compartment syndrome.  There was evidence of tenderness and pain with use of each leg, as well as mild decreased sensation, to support a 10% rating for a moderate muscle injury.  There was no evidence of swelling or weakness of either lower extremity to support a higher rating for a moderately severe muscle injury, and while panel members considered other VASRD codes, all were less applicable and/or not advantageous for rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the left leg condition; and a 10% for the right leg condition, both coded 5399-5312.  

Contended PEB Conditions:  Obstructive Sleep Apnea (OSA) and Pes Planus.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The CI first presented for evaluation of snoring a few weeks after initiation of the MEB for the bilateral leg condition.  His girlfriend had also witnessed that he was “stopping his breathing.  A sleep study was performed on 9 January 2006 and demonstrated OSA, which was profiled and forward by the MEB as not meeting retention standards.  At a pulmonary follow-up visit on 28 March 2006, after starting treatment with a CPAP (continuous positive airway pressure) device, the CI reported feeling well without excessive daytime sleepiness, and denied snoring or apneic episodes.  The 21 February 2006 MEB sleep addendum, 3 months prior to separation, noted that long-term therapy with CPAP was anticipated.  However, the PEB specifically noted that the OSA was controlled on CPAP and therefore only potentially impacted deployability, and that, by itself, was not a sole reason for an unfit determination.  Additionally, IAW DoDI 1332. 38, if the evidence establishes that the member adequately performed duties until referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.  The panel concluded that there was not a preponderance of evidence to overcome the PEB fitness determination for the OSA.  The pes planus not profiled or implicated in the commander’s statement, and did not fail retention standards, and there was no performance-based evidence from the record that it 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 determinations for either of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the bilateral leg condition, the panel recommends disability ratings as follows: an unfitting left leg condition, rated 10% and an unfitting right leg condition, both coded 5399-5312 IAW VASRD §4.73.  In the matter of the contended obstructive sleep apnea and pes planus, 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	
Left Leg Pain 	5399-5312	10%	
Right Leg Pain	5399-5312	10%	
COMBINED	20%	

The following documentary evidence was considered:

AR20200004721

Dear XXXXXXXXXXXXXXXXXXXXXXXXX:

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.