RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2011-00417
BRANCH OF SERVICE:  Army	BOARD DATE:  20141217
SEPARATION DATE:  20041203

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88M/Motor Transport Operator) medically separated for bilateral ankle pain due to avascular necrosis of the talus and bilateral pes planus.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards, although alternate physical fitness testing was approved (see profile).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “chronic bilateral ankle pain,” “severe bilateral pes planus,” and “bilateral talar avascular necrosis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated all of these conditions together as one and rated them at 20%.  The CI made no appeals and was medically separated.

His complete submission is at Exhibit A.

CI CONTENTION:  “I now have to wear braces for my ankle, a back brace plus I have to use a walker which gives me very limited mobility.  I would like to add disabilities to this list due to no outgoing evaluation.  Interstitial lung disease (COPD), posttraumatic stress disorder, [and] sleep apnea the disabilities render me unfit/unable to hold any type of employment.  I was not evaluated for all disabilities incurred/aggravated during service. I am requesting 100% total and permanent disability.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting foot and ankle conditions are addressed below.  The requested chronic obstructive pulmonary disease, posttraumatic stress disorder, and sleep apnea conditions were not identified by the PEB, and thus are not within the DoDI 6040.44 defined purview of the Board.  However, any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20041022	VA - (2.5 months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Ankle Pain…and Pes Planus	5099-5003	20%	Bilateral Pes Planus with Bilateral Ankle Pain	5276	30%	20050219	
Other x 0 (Not In Scope)	Other x 5	
Combined:  20%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20050510 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Bilateral Ankle Pain due to Avascular Necrosis Condition/Bilateral Pes Planus Condition.  Treatment records document that the CI sustained bilateral ankle injuries after a 1,700 pound rack fell on his ankles prior to service.  The narrative summary (NARSUM) notes the onset of foot problems in 1998.  From 1998 to 2004 the CI continued to report bilateral foot and ankle pain without relief from pain medications and activity modification throughout deployments to Germany, Kosovo, and Iraq.  The NARSUM documented diagnoses of severe bilateral flat feet (pes planus), chronic bilateral ankle pain and bilateral talus dome avascular necrosis (loss of the substance of the bone due to vascular compromise).  The NARSUM physical examination noted “severe, bilateral pes planus and severe limitation of motion, especially to dorsiflexion at the ankle joints.”

At the VA Compensation and Pension (C&P) examination performed 2 months after separation, the CI reported bilateral ankle and foot pain with weight bearing.  He reported that the pain was the same on both sides, increased after standing at work over 4 hours, and was partially relieved by Motrin.  He reported the use of arch support inserts at work.  The physical examination was significant for moderate left and mild right pes planus.  The examiner noted calluses on the medial surface of the great toe, left greater than right, and the left 4th metatarsal head.

The goniometric range-of-motion evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Ankle ROM
(Degrees)	MEB ~ 2.5 Mo. Pre-Sep
	VA C&P ~ 2.5 Mo. Post-Sep
	
	Left	Right	Left	Right	
Dorsiflexion (20 Normal)	5	-5	10	10	
Plantar Flexion (45)	40	30	50	50	
Comment	Pes planus	Pes planus	Tender callus, pain with use.	Non tender, but pain with use	
§4.71a Rating	20% (5271)	20% (5271)	10% (5271)	10% (5271)	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic bilateral ankle pain secondary to bilateral avascular necrosis of the talus and pes planus with application of VASRD § 4.14, avoidance of pyramiding as a single unfitting condition and assigned a disability rating of 20%, analogous to degenerative joint disease.  The VA also rated the conditions as a single disability with a rating of 30%, coded 5276 (Pes planus).  The Board noted that VASRD § 4.14 (avoidance of pyramiding); was appropriately applied in this case because pain in the foot and ankle resulted in the same functional impairment or disability.  Although VARSD §4.71a permits combined ratings of two or more joints under code 5003, as adjudicated by the PEB, it also allows individual ratings for separately compensable joints.  The Board may recommend separate ratings for joints adjudicated by the PEB as a single unfitting condition--if it is determined that each joint can be reasonably justified as separately unfitting and is compensable IAW VASRD §4.71a.  In this case, the ankles and feet were profiled, considered to fail retention standards, and implicated by the NARSUM and in the commander’s statement.  Members agree that each lower extremity (ankle and foot) is separately unfitting and that identical coding and ratings are applicable.  The Board then considered if the evidence supported a higher than 10% rating for each lower extremity or a combined rating of 20%.  The physical profile, commander’s statement, NARSUM, and VA C&P examination characterized the pes planus as severe.  The Board determined that the severe, bilateral pes planus met criteria for a 30% disability rating under VASRD code 5276.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and § 4.7(the higher of two evaluations), the Board recommends a disability separate rating of 30% for chronic bilateral ankle pain secondary to bilateral avascular necrosis of the talus and pes planus.

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 Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic bilateral ankle pain secondary to bilateral avascular necrosis of the talus and pes planus condition, the Board unanimously determined that each lower extremity (ankle and foot) was separately unfitting and recommends a disability rating of 30%, coded 5276 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Bilateral Avascular Necrosis of the Talus and Pes Planus	5276	30%	
COMBINED (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140109, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150003618 (PD201100417)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						
CF: 
(  ) DoD PDBR
(  ) DVA