RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	 CASE:  PD-2013-01518	
BRANCH OF SERVICE:  Army 	 BOARD DATE:  20150407
SEPARATION DATE:  20041217		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-7 (Multichannel Transmission Systems Operator Maintainer) medically separated for bilateral ankle pain.  The bilateral ankle condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allowed for alternate aerobic events to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for an Medical Evaluation Board (MEB).  “Right ankle talar OCD lesion, non-operative osteochondritis dessicans” and “chronic left ankle pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated the right ankle and left ankle as unfitting, rated 10% and 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  An Administrative Correction was completed which had no bearing on the ratings.  The CI elected severance pay in lieu of being transferred to the Retired Reserves with entitlement to apply for retirement benefits at age 60.  

CI CONTENTION:  His conditions continue to worsen and negatively impact his daily activities.  His complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  
   
PEB Admin Correction – Dated 20040618	VA - (~1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Pain…	5099-5003	10%	Traumatic Arthritis, Right Ankle	5271	10%	20050115	
Left Ankle Pain…	5099-5003	10%	Traumatic Arthritis, Left Ankle	5271	10%	20050115	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
Combined Rating:  20%	Combined Rating:  60%	
Derived from VA Rating Decision (VARD) dated 20050412 (most proximate to date of separation [DOS]).   
ANALYSIS SUMMARY:  The Board will discuss the unfitting right and left ankle pain conditions together to avoid clerical redundancy and then separate them as needed for individual rating considerations.

Right and Left Ankle Conditions.  The narrative summary (NARSUM) noted that the CI injured both his ankles while deployed-his left ankle during training in March 2003, and right ankle during combat in October 2003.  Both injuries were felt to be ‘sprains’.  Routine foot X-rays in December 2003 revealed a ‘possible’ old left ankle fracture (navicular bone) with non-union and bony deposition (hyperostosis) and an area in the right lower leg (tibia) with bone deposition in the ligaments of the posterior ankle (or syndesmosis) between the tibia and fibula, noted to be possibly due to old trauma.  (Syndesmosis refers to a joint where movable bones are connected by ligaments.  The ankle syndesmosis includes ligaments anterior and posterior to and between the tibia and fibula.)  An MRI of the right ankle, obtained for clarification, revealed normal ligaments, but an OCD (osteochondritis dissecans) of the talus, which is a defect of cartilage/bone, and the bony density in the posterior tibiofibular syndesmosis.  A subsequent bone scan revealed diffuse uptake in the left ankle (trauma reaction/inflammation) without evidence of fracture or bony defects and no abnormal uptake in the right ankle.  The CI was medically evacuated due to lack of improvement with conservative treatment

At the MEB examination, 22 January 2004, 11 months pre-separation, the CI reported continued pain in both ankles, right greater than left with activity.  The MEB physical exam noted mild edema of both ankles and tenderness to palpation over anterior ligaments of each ankle, but no instability.  Right ankle range-of-motion (ROM) was dorsiflexion (DF) of “- 20” (minus 20) degrees (normal 20) and plantar flexion of 45 degrees (normal).  The left ankle range-of-motion (ROM) was DF of 0 degrees and plantar flexion 45 degrees.  The examiner noted there was additional loss of ROM of the right ankle due to pain.  Lower extremities were neurologically intact.  On the DD Form 2808, Report of Medical Examination dated 23 February 2004, next to the lower extremities and feet, the exam noted there was pain with ROM and pain with weight bearing.  Repeat X-rays of the feet and ankles on 20 May 2004 noted “extensive hypertrophic changes probably from previous injury” and degenerative joint disease of both feet, and a probable old fracture of the right fifth metatarsal with non-union.  

Notes in the STR after the MEB exam indicated the CI continued with bilateral ankle pain.  An orthopedic note on 15 March 2004 noted tenderness of the left and right ankles along the peroneal tendons.  A follow-up visit indicated the CI had surgery on the left ankle in August 2004 with removal of a loose body from the same area noted on X-rays above to be a possible fracture (talonavicular joint).  

The VA Compensation and Pension (C&P) General and Joints examinations were both performed 15 January 2005, 1 month after separation.  On the General exam the CI’s gait was noted to be “normal, without ataxia”, with normal strength and reflexes bilaterally.  The examiner noted that the claimed ankle joints were not evaluated.  At the Joints exam, the CI reported he had left ankle surgery in August 2004 and a “fifty cent piece” of bone was removed from his left talus region.  He reported daily pain in the ankles, with flare-ups with any standing or walking, without swelling, instability, or locking and without use of a cane or crutches.  On exam right ankle ROM was DF of 15 degrees and PF of 30 degrees.  Left ankle ROM was DF of 10 degrees and PF of 20 degrees.  There was painful ROM of both ankles, without swelling, focal tenderness, or instability.  Routine X-rays revealed normal joint spaces and some bony densities of ‘uncertain significance’ [may be normal variants or old avulsion fracture fragments].  At the VA C&P Spine examination on 18 January 2005, 3 days after the ankle exams, the examiner noted the CI’s feet and back pain affected his ability to walk.  The CI was noted to be using a cane for the last year due to his foot problems that occurred in 2003.  The examiner attributed the mechanical LBP to the pathology of the feet and noted many bony densities in both feet.  At the VA C&P Neurological exam on 12 January 2005 for upper extremity symptoms, a normal gait was noted.

At an outpatient orthopedic visit 7 June 2006, 18 months after separation, the CI reported right ankle pain and was using a cane.  The examiner indicated that X-rays showed ankle DJD and ossification [bone deposition] of the syndesmosis and recommended ankle fusion.  The CI was referred to another surgeon and had right ankle reconstruction on 1 August 2006.  The post-operative diagnoses were “status post high ankle sprain with persistent ankle impingement and foot deformity (cavovarus) with chronic instability and peroneal tendon tear.”  At the 7 June 2006 orthopedic visit, the examiner also noted that the CI had a previous procedure on the left “which sounds like an accessory navicular excision.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the right and left ankle conditions at 10% (combined 20%), but used different codes.  The PEB rated each ankle under code 5003, citing painful motion; the VA rated each ankle under code 5271 (ankle, limitation of motion/moderate).  The Board noted the differences between the NARSUM and VA exam findings for the ankle conditions and gave higher probative value to the C&P exams in its recommendations given their closer temporal alignment with the date of separation, which must remain as the Board’s definitive benchmark.   

The Board first considered the rating of the left ankle.  Members agreed that coded according to 5003 criteria, the left ankle met a 10% rating for painful limited motion.  The Board next considered the rating criteria of 5271, which are subjective, described as “moderate” for 10% and “marked” for 20%.  Member consensus was that the limited motion of the left ankle could be described as moderate, but not marked based upon the ROM noted at the C&P exam.  The Board reviewed to see if a higher rating was supported by any other codes such as 5284 (other foot injury) or 5283 (tarsal bones, malunion).  The rating criteria for these codes provide 10% for moderate and 20% for `moderately severe’ injury or malunion respectively.  The Board unanimously agreed that coded as 5284 the left ankle disability was best described as `moderate’ and there was no evidence in record of malunion of the tarsal bones of the left foot.  The Board finally considered if rating with 5262 for (impairment of the tibia/fibula) provided a higher evaluation, but there was no evidence in record of a malunion or nonunion of the tibia or fibula of the left leg.  Therefore, the Board unanimously concluded that the evidence supports a 10% rating at separation for the left ankle IAW §4.71a, and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left ankle condition.  

The Board next considered the rating of the right ankle.  Members agreed that by the same reasoning as noted above for the left ankle, the right ankle met a 10% rating coded as either 5003 or 5271.  The Board again reviewed to see if a higher rating was supported by the other codes noted above (5284 or 5283).  The Board majority regarded the CI’s disability at separation due to the right ankle conditions coded as 5284 as `moderate’ and best rated at 10% and not `moderately severe’.  There was evidence of non-union of the fifth metatarsal of the right foot, but there was no evidence that this was a symptomatic injury proximate to separation and members did not favor the use of 5283.  The Board finally considered if rating with 5262 for (impairment of the tibia/fibula) provided a higher evaluation for the right ankle.  Although there was evidence of an old injury of the ligaments of the tibia and fibula, members considered that there was no evidence of a malunion or nonunion of the tibia or fibula of the right leg and agreed that this was not the most appropriate code to utilize.  The Board noted that there was evidence of post-separation worsening of the right ankle condition 18 months after separation, but at the C&P Joints exam, the right and left ankles were similar with painful, moderately limited ROM.  Therefore, the Board majority concluded that the evidence supports a 10% rating for the right ankle at separation, and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right ankle condition. 

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 left ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right ankle condition, the Board majority recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130920, 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 XXXXXXXXXXXXXXX, AR20150018393 (PD201301518)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA