RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00304
BRANCH OF SERVICE:  Army	BOARD DATE:  20141114
SEPARATION DATE:  20070412

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an activated Reserve SGT/E-5 (11B20/Infantryman) medically separated for a bilateral ankle condition.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The bilateral ankle condition, characterized as “Right Ankle pain, limitation of movement, s/p surgical repair” and “Left Ankle pain, limitation of movement, s/p surgical repair”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions (low back pain, bilateral knee pain, proteinuria, elevated LFTs and obesity) for PEB adjudication.  The PEB adjudicated chronic bilateral ankle pain as unfitting, rated at 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “– Both ankles instability    – Sleep apnea severe    – Both knees arthritis”

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 ankle condition is addressed below.  The Board acknowledges the CI’s contention for ratings of his bilateral knee condition that was determined to be not unfitting by the PEB and emphasizes that disability compensation may only be offered for those conditions that cut short the member’s service career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a Service disability rating IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD) and based on the degree of disability evidenced at separation will be recommended.  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 20070228	VA – (4 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic bilateral ankle pain…	5099-5003	10%	Right Ankle Ligament Instability, Status Post Brostrom Repair	5271	10%	20070812	
			Left Ankle Ligament Instability, Status Post Brostrom Repair	5271	10%	20070812	
Bilateral knee pain, bursitis	Not Unfitting	Bursitis, Left Knee	5260	10%	20070812	
		Bursitis, Right Knee	5260	10%	20070812	
Other x 4 (Not in Scope)	Combined:  80%	
Rating:  10%		
Derived from VA Rating Decision (VARD) dated 20080229. 

ANALYSIS SUMMARY:  

Bilateral ankle conditions.  Review of the service treatment record (STR) indicated that the CI sustained a series of ankle sprains, most notably the right ankle in November 2004 and the left ankle in October 2005.  The CI had persistent pain and instability (with recurrent sprains), leading to both a right ankle surgery in February 2006 (modified Brostrom reconstruction) 
14 months prior to separation and in October 2006 the CI’s had a left ankle surgery (modified Brostrom) 6 months prior to separation.  However, the CI continued to have persistent pain and instability of both ankles after the surgeries, which lead to his referral for a MEB.

Three months prior to separation during an orthopedic appointment, the orthopedist stated, “[The CI] reports improvement in his pain but some mild discomfort residually.  He further noted that the CI had some improvement in his feelings of instability on the left and that overall the CI unable to perform his duties as an 11B Infantry Soldier”.  The orthopedist further noted that, “… his incisions are well healed; his alignment is good, his range of motion is symmetric and his stability is exam is [sic] significantly improved”.  Two weeks following the orthopedic evaluation, during a physical therapy (PT) session, the CI was noted to have “improved [left] ankle mechanics with gait, good tibial translation,” and while performing unilateral calf raises, the CI had decreased (bilateral) endurance.  Decreased range-of-motion (ROM), are detailed in the table below.

At the MEB exam (3 months prior to separation), the examiner did not provide a specific examination of the ankles, but stated, “Proceed [with] MEB for ankles only”.  A profile written 3 months prior to separation listed extensive duty restrictions [“no running, rucking, jumping, squatting or walking on uneven ground”] and recorded the medical condition as “Bilateral ankle instability”.  In the NARSUM (approximately 3 months prior to separation), the CI had normal strength and sensation of the ankles, normal gait/stance and trace (< l mm) anterior ankle laxity bilaterally.  The examiner noted that the ROMs were limited by pain.  ROM are captured in below chart.

The commander’s statement to the PEB (2 months prior to the CI’s separation), noted that the MEB would evaluate the CI’s ability to perform his duty based on limitations imposed by his permanent physical profile for bilateral ankle instability.  The commander notes that the CI stated that he sustained injuries to his ankles at Fort Bliss, TX in 2005, first during pre-deployment training to Iraq and then again while in Iraq.  The commander further notes that the CI stated that his ankle pain worsened along with his knee and back pains during this time.

The VA Compensation and Pension (C&P) examination (2 months post-separation), the CI reported chronic pain for both ankles and wearing braces on ankles for walking.  The examiner stated, “With walking long distances more than 200 yards or for prolonged standing for more than an hour he has pain of his ankles”.  Examination showed scars on both ankles and intact strength and sensation of both ankles.  Gait was described as antalgic with the ankle exams (although it was described as normal with the knee and back exams).  The right ankle ROM was decreased but “unlimited by pain” and there was no right ankle instability (pain and stability were not specified for the left ankle).  After exercise, there was no additional impairment of joint function by pain, weakness, fatigue, incoordination, or lack of endurance.  Remote re-evaluations by the VA obtained over 30 months post-separation, continued the 10% ratings for each of the ankles.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the charts below.

Right Ankle ROM
(Degrees)	PT ~5 Mo. Pre-Sep	PT ~3 Mo. Pre-Sep	NARSUM ~3 Mo. Pre-Sep	VA C&P ~2 Mo. Post-Sep	
Dorsiflexion (20 Normal)	5	5	-1,-1,-1	15	
Plantar Flexion (45)	40	40	45 (65,65,65)	30	
Comment: Surgery 14 Mo. Pre-Sep)	Using bilateral crutches; impaired gait	“unilat calf raises: … decreased (bilateral) endurance”	Limited by pain; normal gait; mechanical dorsiflex to 0; trace laxity	ROM “Unlimited by pain;” antalgic gait; DeLuca negative	
§4.71a Rating	10%-20%	20%	20% (PEB 10% combined)	10%	
Left Ankle ROM					
Dorsiflexion (20 Normal)	“lacks 8”	5	0,0,0	10	
Plantar Flexion (45)	31	42	45 (65,65,65)	25	
Comment: Surgery 6 Mo. Pre-Sep)	Diffuse swelling; 1 Mo post-surgery; impaired gait	“unilat calf raises: … decreased B endurance”; Motor weak; decreased stability 	Limited by pain; normal gait; mechanical dorsiflex to 0; trace laxity	Antalgic gait; DeLuca negative	
§4.71a Rating	20%	20%	20% (PEB 10% combined)	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB combined (bundled) the right and left ankle conditions as a single unfitting condition coded analogously to 5003 and rated at 10%.  Alternatively, the VA rated each ankle separately using code 5271 (ankle, limited motion of) with a rating of 10% (moderate).  Although VASRD §4.71a permits combined ratings of two or more joints under 5003 (under certain conditions), it also allows separate ratings for separately compensable joints.  The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must be reasonably justified prior to awarding separate disability ratings.  In this case, both ankles were considered to fail retention standards; both were implicated by the NARSUM and in the commander’s statement and both were profiled.  Members agreed therefore that each ankle is reasonably justified as separately unfitting.

The Board noted the marked similarities in descriptions and examinations of the both ankles and found little to differentiate between the two ankles in terms of disability rating.  Each exam described decreased ROM of both ankles (see tables above).  The Board adjudged that each ankle had pain-limited motion to at least the minimum compensable rating (10% each IAW VASRD §4.59-painful motion) and considered if alternate coding under code 5271 (ankle, limited motion) to a 20% rating ("marked” limitation) was warranted for either ankle (versus 10% “moderate” limitation).  The Service exams documented pain-limited and mechanical ankle dorsiflexion ROM limits to no greater than 5 degrees, while the VA exam documented dorsiflexion to 10 degrees or more and mixed evidence of normal and antalgic gait during the same exam.

Considering the decreased ROMs (both pain-limited and mechanically limited) and additional disabilities found on the Service exams (decreased endurance in the PT exam and joint instability in the NARSUM) only 3 months prior to separation and mindful of §4.3 (reasonable doubt), the Board concluded that it was likely that these issues persisted and reflected the CI’s condition at the time of separation.  These ROMs and the disability picture proximate to separation more nearly correspond to “marked” limitation of ankle motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board consensus recommends a disability rating of 20% for the right ankle and 20% for the left ankle condition each coded 5271.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral knee conditions were 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.  The bilateral knee conditions were not profiled and were not judged to fail retention standards.  The commander’s statement to the PEB (2 months prior to separation), noted the CI’s ankle injuries at Fort Bliss and during his tour in Iraq and that, “His ankle pain worsened along with knee and back pains” during the deployment.  The profiles had been exclusively for the bilateral ankle conditions; however, a profile addendum written (2 months prior to separation), by the physical therapist stated, “recommends SM [service member] utilize pool for cardio and strengthening of bilateral ankles and left knee”.  The Board also considered that the impairment from the left knee may have been overshadowed by the lower extremity L3 profile for the unfitting bilateral ankle conditions.  The right knee condition was not noted to have significant complaints or treatment prior to entry into the disability system and was adjudged as not having approached the level of being unfitting.

The Board subsequently focused on the fitness of the left knee condition.  The left knee condition was first mentioned in the STR (5 months prior to separation), when the CI stated, “… my left knee hurts with a dull aching pain”.  The CI was referred to orthopedics for evaluation of the left knee (3 months prior to separation), but the provider addressed only the ankle issues.  Left knee pain was again mentioned in the MEB exam and the provider wrote, “Meets retention standards” and “Proceed [with] MEB for ankles only”.  No specific knee exam was performed.  In the NARSUM, the left knee was entered under Past History (without a full history) and was designated as “Meets Retention Standards”.  The knees had full ROM, with no further exam details.  There was insufficient performance based evidence from the record that either knee condition significantly interfered with satisfactory duty performance.  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 contended bilateral knee conditions and so no additional disability ratings are 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the ankle conditions was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the Service-combined bilateral ankle conditions, the Board unanimously recommends that it be rated for two separate unfitting conditions.  The recommended ratings are unanimously the right ankle coded 5271 with a Service disability rating of 20% and by majority vote the left ankle coded 5271 with a Service disability rating of 20%; both IAW VASRD §4.71a.  In the matter of the contended bilateral knee conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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	
Right Ankle Pain	5271	20%	
Left Ankle Pain	5271	20%	
COMBINED (w/ BLF)	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140106, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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, AR20150004303 (PD201400304)

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 40% 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 40% 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						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA