RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXX		BRANCH OF SERVICE: army
CASE NUMBER:  PD0900185		BOARD DATE: 20090916	
SEPARATION DATE: 20050812
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SUMMARY OF CASE:  This covered individual (CI) was a Sergeant in Fire Support medically separated from the Army in 2005 after 5 years of service.  The medical basis for the separation was chronic left ankle pain and instability.  The CI injured his left ankle during physical training in August 2001 while running.  He suffered an inversion injury when he stepped into a hole with acute onset of pain and inability to bear weight.  The CI underwent physical therapy, surgery, and rehabilitation without improvement sufficient to accomplish the duties of his MOS.  The CI was referred to the PEB, found unfit and separated at 10% disability.
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CI CONTENTION:  "Additional issues and increased service connected ratings." 
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RATING COMPARISON:

Previous Determinations 	
Service	VA (exam pre-discharge)	
PEB Condition	Code	Rating	Date	Condition	Code	Rating	Exam Date	Effective date	
CHRONIC LEFT ANKLE PAIN AND INSTABILITY	5099 5003	10%	20050516	ANKLE SPRAIN, LEFT
OSTEOARTHRITIS, LEFT ANKLE	5271

	10%
100%
10%	20050725

2008	20050813
20070411
20070701	
				NERVE DAMAGE, L LEG ASSOCIATED WITH OSTEOARTHRITIS LEFT ANKLE	8521	0%	20050725
	20050813
	
NOT RATED				MIGRAINE HEADACHES	8199-8100
8100	30%

50%	20050725

2006	20050813

20080730	
NOT RATED				TINNITUS, BILATERAL	6260	10%	20050725	20050813	
NOT RATED				RENAL CALCULUS	7508-7509	10%	20050725
	20050813	
NOT RATED				CERVICAL SPINE CONDITION DDD C5-C6	5237

5243	NSC

10%	20050725

2006	NA

20050813	
NOT RATED				LUMBAR SPINE CONDITION
DEGENERATIVE DISC DISEASE L3-L4, L5-S1	5237

5243	NSC

10%	20050725

2006	NA

20050813	
NOT RATED				ASTHMA 	6602	NSC

30%	20050725

2006	

20050813	
NOT RATED	11 other conditions rated 0% or NSC: R THUMB; HEARING LOSS, BILATERAL; ARTHRITIS, R KNEE; MULTIPLE SCLEROSIS; NERVE DAMAGE, R LEG; RESIDUALS OF FRACTURED RIBS; CHRONIC SINUSITIS/RHINITIS; R KNEE; L KNEE; RIGHT INGUINAL HERNIA; JAW CONDITION	
TOTAL Combined:  10%	TOTAL Combined (incl non-PEB Dxs):   50% from 20050813
100% from 20070411
70% from 20070701
80% from 20080730	

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ANALYSIS SUMMARY:  The MEB and PEB focused exclusively on chronic left ankle pain.  The Commander's memo (20050217, 3-months prior to PEB) indicated severe ankle and stomach pain as unfitting or adversely impacting the CI's ability to perform the duties of his MOS.  The MEB was "ortho-directed" and the NARSUM appears to be written by an orthopedic surgeon.  There is an email to the MTF dated 20050428 in the PEB Case file requesting ROMs of the ankle that stated:  "He has multiple other possibly unfitting conditions, but as they are not listed on his profile we won't ask about them."   

Chronic Left Ankle, Pain and Instability.  PEB 20050516 Disability Description:  "Chronic left ankle pain and instability beginning in August 2001 secondary to an injury while on active duty.  Soldier underwent arthroscopy of his ankle in April 2002 without relief of the pain.  Pain not relieved by physical therapy, rest or non-opioid pain medications.  Physical examination revealed tenderness, mild swelling and popping over ankle and a range of motion (ROM) of the left ankle 91% of the right ankle.  Radiographic studies were described as negative."  The MEB had Left Ankle Pain as the single diagnosis and the ankle was the focus of the NARSUM.  The salient left ankle pain and injury history in Aug 01with complaint of limited motion and pain were well described and captured by the PEB.  The CI underwent Physical Therapy casting, and Cortisone Injections into his ankle, and left ankle surgical debridement in Apr 02.  Following rehabilitation, the CI still had pain in his Achilles and shin, paresthesias in the dorsum of his foot, and a popping sensation in his ankle.  Orthopedics recommended a P3 profile and referral to MEB.  There was tenderness to palpation in the lateral left ankle with lower extremities neurologically intact.  Formal ROM testing by physical Therapy on 20050502 documented dorsiflexion to 10˚ and plantar flexion to 35˚ with moderate pain on motion.  

	
ANKLE
Movement
	Normal ROM
	ROM Mil 
with pain
20050502	ROM VA
20051125
	
Left Dorsiflexion	0 – 20	5	10	
Left       Plantar flexion	0 - 45	35	40	

VA RD from exam of 20051110:  VA examination of left ankle reveals no palpable tenderness and no bony deformity.  There is negative laxity per inversion, eversion, and drawer testing.  There is no edema. Range of motion, left ankle: active range of motion plantar flexion 40 degrees and dorsiflexion 10 degrees.  The passive range of motion and active range of motion post exercise remains the same in both parameters.  The left ankle was exercised by performing plantar flexion x 10 repetitions.  There is no evidence of pain, incoordination, excessive fatigability, or further loss of function with this exercise. There are no suspected or observed additional losses of function due to flare-up of the left ankle condition.  You have been diagnosed with chronic left ankle sprain.  An evaluation of 10 percent is granted for moderate limited motion of the ankle.  Later VA rating determinations kept the 10% rating level with a slightly different diagnosis/code.  

The left ankle was clearly unfitting, had limited ROM due to pain and mechanically, and was correctly coded at 10%.  The Board may consider changing the ankle code to 5271 Ankle, limited motion of: moderate at 10%; however, Army coding using 5099-5003 at 10% is also correct and is not less favorable to the CI.  

Nerve Damage, Left Leg.  Not a MEB or PEB diagnosis.  Not addressed by profile or the Commander's memo.  The NARSUM noted neurologically intact lower extremities.  The VA examination noted an assessment of trivial (less than mild) sensory loss, incomplete, dorsum left foot, in distribution of sural nerve with no motor involvement.  The VA rated this condition at 0%.  There is no indication in the records that this condition should have been found to be unfitting.  

Migraine Headaches.  Not a MEB or PEB diagnosis.  Not addressed by profile or the Commander's memo.  The NARSUM noted "Migraines-November of 2004" in past Medical History and they were mentioned in the MEB history and physical as requiring narcotic medication for relief.  Service medical records show diagnosis and treatment for a long history of migraine type headaches that started when he was about 10 years old, but had "recently" increased in severity and frequency per a treatment note of 20050209.  A neurology referral made the diagnosis of migraine headaches.  Trials of Hydrocodone, Tylenol #3, Ibuprofen, Zomig, Depakote, and Topomax did not reduce the migraines from 1-2 per week.  The pain was described as in the right frontal head area, which sometimes radiates into the occiput; sharp in character and is associated with nausea, photophobia and phonophobia, nausea, dizziness, vertigo, blurred vision and spots in his vision. He typically uses Tylenol #3 and lies down to rest for relief of the pain.  The VA originally rated the CI's Migraines at 30% for characteristic prostrating attacks noted on exam history performed pre-discharge.  VA narrative extract: "You informed the VA examiner that your headaches occur with the frequency of once to twice per week. It always occurs in the right forehead and right eye regions with associated photophobia and sometimes nausea, but not vomiting.  This headache pain is described as sharp and steady and non-throbbing.  The typical duration of these headache pains is from three to ten hours in length.  You note that Tylenol No.3 often helps with the headache pain. About once a week, the headache is of such character and intensity that requires you to lie down." 

The Board should determine if this condition meets the threshold for being added as a new unfitting condition, and determine the level of disability if found to be unfitting.  It is difficult from the treatment record to determine the frequency of true prostrating attacks for the "several months" pre-discharge.  The frequency and severity of attacks had increased in Feb 05 and the MEB was May 05.  

10% is "averaging one in 2 months over last several months"; 30% is "prostrating attacks on an average one a month over last several months".  The VA 30% rating appears to grant "prostrating" to most of CI's migraine headaches.    

Right Inguinal Hernia (RIH).  Not a MEB or PEB diagnosis.  Not addressed by profile, however, the Commander's memo specified "stomach pain" as adversely impacting the CI's ability to perform the duties of his MOS—"not able to lead his soldiers during physical exercises due to his inability to perform most of the tasks."  The NARSUM noted RIH under Past Surgical History (2000) and that the CI experienced occasional sharp pains in that area despite being tried on numerous pain regimens and having had injections into the wall of the stomach to create a nerve block.  An MRI of the abdomen (20050721) showed no evidence of any recurrent hernia or abnormality relating to the hernia repair.  The VA rated this condition at 0%.  

The Commander highlighted Stomach Pain as a significantly limiting factor along with the CI's required time away from duty for treatment.  Ilio-inguinal/abdominal wall pain was mentioned in the NARSUM and MEB H&P.  It was not factored into the CI’s typed Physical Profile (DA 3349 dtd 20050214), but was on the hand-written physical (DA 2808 20050314?) PULHES 1131111.   

Having post surgical abdominal wall pain (residual of RIH surgery) sufficient to require nerve blocks could be characterized as Ilio-inguinal nerve neuritis; 8630 severe.  The Board should determine if this abdominal wall pain should be added as a new unfitting condition at 10%.  

Asthma.  Not a MEB or PEB diagnosis.  Not addressed by profile, or the Commander's memo.  Asthma is noted in the NARSUM Past Medical History and the MEB history as well controlled on medication of Fluticasone and Albuterol.  The VA categorized the CI's asthma as mild intermittent type requiring daily medications and rated it at 30%.  There is no indication in the records that this condition rose to the level of being unfitting.  

Tinnitus, Bilateral.  Not a MEB or PEB diagnosis.  Not addressed by profile, or the Commander's memo.  Tinnitus beginning in 2003 is noted in the NARSUM.  A treatment note from 20050330 noted subjective tinnitus and discussed use of "white noise" for sleep, background fan or radio at night.  Although the VA rated this at 10%, there is no indication in the records that this condition should have been found to be unfitting.  

Renal Calculus.  Not a MEB or PEB diagnosis.  Not addressed by profile, the Commander's memo, or the NARSUM.  A radiology exam report of 20050425 noted:  Incidentally, there is a calculus that is noted in the lower mid pole of the right kidney and it measures 0.5 cm. in its widest diameter.  Although the VA rated this at 10%, there is no indication in the records that this condition should have been found to be unfitting.  

Infrapatellar Bursitis, Right Knee later rated Patellofemoral Syndrome, Right Knee).  Not a MEB or PEB diagnosis.  Not addressed by profile, or the Commander's memo.  The NARSUM noted chronic knee bursitis beginning in 2001.  The VA rated this condition at 0%.  There is no indication in the record that this condition should have been found to be unfitting.  

Infrapatellar Bursitis, Left Knee later rated Patellofemoral Syndrome, Left Knee).  Not a MEB or PEB diagnosis.  Not addressed by profile, or the Commander's memo.  The NARSUM noted chronic knee bursitis beginning in 2001.  The VA rated this condition at 0%.  There is no indication in the record that this condition should have been found to be unfitting.  

Low Back Pain.  Not MEB or PEB diagnoses.  Not addressed by profile, the Commander's memo, or the NARSUM.  LBP being seen by Physical Therapy was noted in the MEB H&P dated 20050310.  The VA noted no disability on initial examination and their decision was NSC; the VA later rated this condition at 10%.  There is no indication in the record that this condition should have been found to be unfitting.  

Cervical Spine Condition.  Not MEB or PEB diagnoses.  Not addressed by profile, the Commander's memo, the NARSUM, or the history and physical.  The VA noted no disability on initial examination and their decision was NSC; the VA later rated this condition at 10%.  There is no indication in the record that this condition should have been found to be unfitting.  
  
Jaw Condition.  Not a MEB or PEB diagnosis.  Not addressed by profile, the Commander's memo, or the NARSUM.  The VA rated this condition at 0%. 

Residual of Fractured Ribs.  Not a MEB or PEB diagnosis.  Not addressed by profile, the Commander's memo, or the NARSUM.  The VA rated this condition at 0%. 

Chronic Sinusitis later rated Rhinitis.  Not a MEB or PEB diagnosis.  Not addressed by profile, the Commander's memo, or the NARSUM.  The VA rated this condition at 0%.

Right Thumb Injury.  Not a MEB or PEB diagnosis.  Not addressed by profile, the Commander's memo, or the NARSUM.  The VA did not rate this condition (NSC). 

Hearing Loss, Bilateral.  Not a MEB or PEB diagnosis.  Not addressed by profile, the Commander's memo, or the NARSUM.  The VA did not rate this condition (NSC). 

Arthritis, Right Knee.  Not a MEB or PEB diagnosis.  Not addressed by profile, the Commander's memo, or the NARSUM.  The VA did not rate this condition (NSC).

Multiple Sclerosis.  Not a MEB or PEB diagnosis.  Not addressed by profile, the Commander's memo, or the NARSUM.  The VA did not rate this condition (NSC). 

Nerve Damage, Right Leg.  Not a MEB or PEB diagnosis.  Not addressed by profile, the Commander's memo, or the NARSUM.  There was a neurological exam of 20050524 that noted CI's complaints of "persistent chronic low back pain which radiates down his legs bilaterally, R>L. He has numbness and tingling in his right leg, however, he does not report weakness."  The VA did not rate this condition (NSC). 
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BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the PDBR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board cannot rate worsening or progression of conditions from the time of discharge except as that would relate to the diagnosis and disability at discharge.  The Board unanimously adjudged that the left ankle rating for limited motion at 10% under 5099-5003 was correct.  The majority of the Board considered the Commander's memo as having the highest value in clarifying conditions that adversely impacted the CI's duty performance and unfitness.  The Board unanimously voted to add abdominal wall pain (mentioned as duty limiting in the commander's memo and described in the NARSUM as  following inguinal hernia repair) as a new unfitting condition and to rate it analogously to Ilio-inguinal nerve neuritis, severe.  The majority of the Board opined that migraine headaches should not be added as a new unfitting condition as the Commander's memo did not indicate any duty limitations from headaches of any type or prostrating migraine attacks.  The Board unanimously opined that Asthma, tinnitus, bilateral knee pain, and low back pain were peripherally addressed in the DES package and should be found to not be unfitting.  All other VA diagnosis appeared to be not unfitting at the time of CI's separation; however, as they were not considered within the DES package these diagnoses are beyond the scope of the Board and the CI should be referred to his Service BCMR should he wish to pursue addition of those conditions as unfitting.   

The Board voted by simple majority to rate the CI as Chronic left ankle pain 10% under 5099-5003, and Abdominal pain at 10% under 8099-8630.  The single voter for dissent (who recommended adding Migraines as a new unfitting condition at 10% [combined 30%]) submitted an attached minority opinion. 
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RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the CI’s prior medical separation.

Unfitting Condition	VASRD Code	Rating	
CHRONIC LEFT ANKLE PAIN AND INSTABILITY	5099-5003	10%	
abdominal wall pain, rated as ilio-inguinal nerve neuritis, severe	8099-8630	10%	
Combined	20%	

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The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090224, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.

MINORITY OPINION:

The CI's records clearly demonstrated significant worsening of his chronic headaches in the 8 months prior to discharge.  The CI had been referred to a specialist and the diagnosis of Migraines was made during MEB evaluation (MEB physical 20050307).  The NARSUM (20050404) indicated migraines in the medical history and noted migraine daily medication use, but did not reference the neurology consult (20050302) and appeared to exclusively focus on the CI's orthopedic condition.  As the neurologist was a civilian, and the NARSUM appeared to be written by a specialist, the lack of a profile restriction for migraines is not indicative of lack of adverse impact on duty restriction.  The Commander's memo was dated 20050217, 3 months prior to the PEB (20050516) and early in the course of the CI's neurology evaluation and starting more substantial Migraine treatment including narcotics.  The neurologist noted "About once a week, the headache is of such character and intensity that requires you to lie down."  The record of the medications used and the number and severity of prostrating attacks would seriously impact the CI's ability to deploy and accomplish the duties of his MOS. 

Depending on the interpretation of the VASRD and the "several months'" average for prostrating attacks, migraines should be rated from 30% (as the VA rated based on a pre-discharge exam) to 10% if the average were one in two months. 

I believe that the 20050428 email in the PEB case file noting "multiple other possibly unfitting conditions" while stating "as they are not listed on his profile we won't ask about them" allowed an incomplete and unjust assessment of the CI's worsening Migraines.     

In my opinion the CI’s Migraines should be adjudged as a new unfitting condition and rated at 10%.  That rating, in addition to the 10% ankle rating and 10% abdominal wall pain rating, yields a combined separation rating of 30%.  I believe that to be a fair adjudication of this case.