RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01652
BRANCH OF SERVICE:  Army	BOARD DATE:  20140508
SEPARATION DATE:  20040323

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (31F/Network Switching System Operator-Maintainer) medically separated for bilateral ankle pain and chronic foot pain.  The CI’s bilateral ankle pain began in 2000 during basic training, when he sustained multiple inversion injuries.  He eventually had surgery on both ankles.  With respect to his feet, the CI experienced pain with activity along the bottom of his feet, as associated with his ankle condition.  Neither of these conditions could be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The bilateral ankle and foot conditions, characterized as “chronic ankle pain status post Brostrom reconstruction of bilateral ankles” and “chronic plantar fasciitis” respectively, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “left knee retropatellar pain syndrome” as meeting retention standards.  The PEB adjudicated “bilateral ankle pain and instability post Brostrom reconstruction” and “chronic foot pain due to plantar fasciitis” as unfitting, rated 0% and 0%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The PEB found the referred left knee condition as not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “After my discharge from the military I was found 50% disabled by the Department of Veterans Affairs.  The injuries I received, during active duty, that found me unfit for duty are not likely to improve.  Sadly those injuries have progressively gotten worse over time, as stated they would.”

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 ratings for the unfitting bilateral ankle and foot conditions are addressed below; the not unfitting knee condition was also determined to be in Scope as the CI claimed for “injuries received” and stated that the left knee condition was secondary to an injury in basic training; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 20031210	VA - (~2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Foot Pain due to Plantar Fasciitis	5399-5310	0%	Left Foot Plantar Fasciitis with Pes Cavus	5299-5020	10%	20040205	
			Right Foot Plantar Fasciitis with Pes Cavus	5299-5020	10%	20040205	
Bilateral Ankle Pain and Instability	5099-5003	0%	Right Ankle Reconstructive Surgery	5271	10%	20040205	
			Left Ankle Reconstructive Surgery	5271	10%		
Left Knee RPPS	Not Unfitting	Left Knee RPPS	5299-5014	10%	20040205	
No Additional MEB/PEB Entries	Other x 6	20040205	
Combined:  0%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20040401 (most proximate to date of separation [DOS]).
* VARD 20110804 increased DC 5271 for left and right ankle to 20% each, effective 20101124; under the same VARD, DC 5299-5020 for both left and right foot conditions was continued at 10% disabling for each foot.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The PEB combined the right and left chronic foot pain conditions under a single disability rating, coded analogously to 5310 (muscle disabilities, Group X) as well as the bilateral ankle pain and instability under a single disability rating, coded analogously to 5003 (arthritis).  Although this approach may comply with service policy, the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW the VASRD.  If the Board judges that two or more separate ratings are warranted in such cases, it must satisfy the requirement that each “unbundled” condition is reasonably justified as separately unfitting.  The Board's initial charge in this case is therefore directed at determining if the PEB's approach of combining conditions under a single rating was justified in lieu of separate ratings.  If it is judged that one or more of the combined conditions satisfies the unfitting stipulation from above, separate ratings IAW the VASRD are recommend; the Board may not recommend a lower combined rating than that achieved by the PEB’s approach.

Bilateral Ankle Pain and Instability.  The first record in evidence for the right ankle is from 12 September 2000, 5 months after accession, when he was seen in physical therapy (PT) for a sprain.  It was noted that he had sustained a fracture 2 years earlier (prior to accession) while playing volleyball.  He was seen in orthopedics 2 weeks later and reported a history of multiple ankle sprains which had been treated with braces.  The Board noted that he denied any history of joint problems on the accession history.  Conservative management including duty restrictions and PT was not successful and he underwent reconstruction of the right ankle on 21 August 2001.  Post-operatively, he did well and then underwent reconstruction of the left ankle on 15 August 2002.  Again, rehabilitation was successful.  On 21 March 2003, he was seen in acute care with the report that he had “rolled” his left ankle multiple times over the past 3 days.  He was seen in orthopedics on 20 September 2003.  He complained of right greater than left plantar pain and left ankle pain.  On examination, the left ankle was well healed with normal flexion and extension.  
The right plantar fascia was tender consistent with plantar fasciitis.  The narrative summary (NARSUM) was dated 9 October 2003.  The CI reported that his ankle pain began in basic training and that his left ankle was worse than his right.  He was unable to walk over 200 to 300 yards.  On examination, which was apparently done by an orthopedic surgeon, his range-of-motion (ROM) was recorded a normal at 10 degrees of dorsiflexion (toes up) bilaterally and also noted was 30 degrees of plantar-flexion (toes down.)  The ankles were stable.  Plain X-rays were normal and a magnetic resonance imaging (MRI) of the left ankle showed degenerative changes.  He was diagnosed with chronic bilateral ankle pain after Brostom reconstruction.  At the VA Compensation and Pension (C&P) examination performed on 5 February 2004, 6 weeks before separation, the CI reported bilateral ankle pain since the left ankle reconstruction 2 years earlier.  He had not responded to orthotics and no use of a brace was recorded.  He did not have special shoes.  He had a desk job and had not missed work secondary to the ankle condition.  Dorsiflexion was noted as reduced and painful; plantar flexion was normal.  The gait and station were normal.  There was no instability or fluid in the joint.  His weight was noted at 244 pounds and height 68 inches; at accession, he weighed 167 pounds, a gain of 77 pounds or 46%.  The action officer opined that this would increase the symptoms of any painful, weight bearing joint.  The goniometric ROM 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)	PT ~10 Mo. Pre-Sep	MEB ~6 Mo. Pre-Sep	VA C&P ~2 Mo. Pre-Sep	
	Left	Right	Left	Right	Left	Right	
Dorsiflexion (20 Normal)	“WFL”	Not measured	10	10	10	10	
Plantar Flexion (45)	“WFL”	Not measured	30	30	45	45	
Comment							
§4.71a Rating	-%	-%	10%	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral ankle condition at 0% using the code 5099-5003, analogous to degenerative arthritis.  The VA rated each ankle at 10% using the code 5271 for limitation in motion of the ankle.  Both the PEB and VA examiners documented limitation in dorsi-flexion less than the VA normal value of 20 degrees.  Although the left ankle was more symptomatic, both ankles had surgical reconstruction and dorsiflexion was painful.  The Board determined that the evidence supported a determination that each ankle was separately unfitting and a rating appropriate.  The 5271 code used by the VA supports a 10% rating for each ankle.  The Board also noted for the record that while the PEB determined that the bilateral ankle pain and instability were unfitting, the ankles were noted to be stable at both the PEB and VA examinations.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10%, each, for the bilateral ankle pain condition using the 5271 code.

Chronic Foot Pain.  The first record in evidence for the foot condition was an orthopedic referral to PT for right greater than left plantar fasciitis on 4 January 2003.  He was seen 2 months later in acute care.  The last clinic record in evidence for the plantar fasciitis condition was a 20 September 2003 orthopedic note.  It noted a painful right plantar fascia and left ankle.  No comment was made on the right ankle or left plantar fascia.  Plain X-rays on 8 October 2003 which documented bilateral pes cavus.  The Board observed that this is not otherwise diagnosed in the treatment record.  He was diagnosed with chronic plantar fasciitis.  The NARSUM recorded that the CI reported pain of the plantar fascia.  On examination, manipulation of the plantar fascia was painful.  At the VA C&P examination, the CI reported no benefit from orthotics and that he had pain in his feet after walking a mile or standing over 4 hours.  His gait and station were normal.  He was tender over the origin of the plantar fascia in the heels.  There was no evidence of abnormal weight bearing.  Bilateral plantar fasciitis and pes cavus was diagnosed; it is not clear on what the latter was diagnosed as it is not mentioned in the body of the C&P other than in the list of diagnoses to be evaluated.  The X-rays noted above were not cited.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic foot pain due to plantar fasciitis with a normal arch at 0% using the code 5399-5310, analogous to Group X muscles, which includes the plantar fascia.  The VA rated each foot at 10% using the code 5299-5020, analogous to synovitis, for plantar fasciitis with pes cavus (high arch).  It noted that the pes cavus appeared to be solely a finding on X-ray one time and of no clinical significance, as it was not recorded by the orthopedic surgeons at multiple visits.  The Board noted that the CI had subjective pain in his feet and tenderness on examination of the plantar fascia and reported limitations in walking and standing.  His gait and stance were normal, though.  The Board found no evidence of limitation of motion, spasm or painful motion which could be attributed to the plantar fasciitis condition, separate from the ankle condition, to support a rating under the 5020 code used by the VA.  It then considered the PEB code of 5310 and unanimously determined that the level of disability would be slight given the ability to walk a mile.  The Board construed that applying this coding option to each foot, considering each foot can be found reasonably justified as unfit, would not provide individual ratings higher than the 0% rating.  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 bilateral plantar fasciitis condition.  

Contended PEB Conditions.  The CI contended for the “injuries” suffered on active duty.  The CI was first seen for a 3-day history of atraumatic left knee pain on 18 April 2000, 2 weeks after accession.  He was again seen on 11 July 2000 for a 2.5 month history of knee pain after a left knee injury in basic training.  The injury is not otherwise documented.  An MRI showed a small effusion (fluid in the joint), but was otherwise unremarkable.  When seen on 11 February 2002, he reported prior arthroscopic surgery of the left knee 10 years earlier; this was not previously disclosed.  Two months later, he was given a brace and crutches for knee pain.  The last note in the record specific for the knee was on 8 October 2003 when an X-ray showed some narrowing of the outside knee compartment, but otherwise was unremarkable.  His knee examination was essentially normal other than irritation of the patella with compression.  The knee was not on profile for over 2 years at the time of separation.  The commander listed the knee, feet and ankle pain in his assessment.  The MEB determined that the knee met retention standards and the PEB adjudicated it as not unfitting.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended not unfitting knee condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the left knee pain significantly interfered with satisfactory duty performance in the last two years of active duty.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the left knee condition and so no additional disability rating is recommended.

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 and right ankle conditions, the Board unanimously recommends a disability rating of 10% each, coded 5271 IAW VASRD §4.71a.  In the matter of the bilateral foot conditions and IAW VASRD §4.71a, the Board by a majority vote, recommends no change in the PEB adjudication.  In the matter of the contended left knee condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Ankle Pain 	5271	10%	
Left Ankle Pain	5271	10%	
Bilateral Plantar Fasciitis	5399-5310	0%	
COMBINED (w/ BLF)	20%	

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, AR20150006324 (PD201301652)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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