RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00668
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20050225	
DATE REMOVED FROM TDRL:  20060313

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Heavy Wheeled Vehicle Mechanic, medically separated from the Temporary Disability Retired List (TDRL) for “right calcaneus fracture with osteomyelitis” and “chronic right ankle pain,” rated 20% and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends his permanent disability rating should have been higher.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 based upon a review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (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:  

SERVICE PEB – 20041101/20060207	VARD - 20050526	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Right Calcaneus Fracture with Osteomyelitis	5000	20%	20%	Post Traumatic Degenerative Joint Disease Right Rear
Foot (Claimed as Loss of Sensation; Shattered Calcaneal	5010-5284	0%	0%	
				Tibial Nerve Impairment Sole Distribution Right Foot
(Claimed as Nerve 2d to Right Foot)	8525	10%	10%	
Chronic Right Ankle Pain	5099-5003	10%	0%	Fibula Bone Right Ankle Fractures Healing Proximally
And Distal with Angulation Tibia Bone Healed with
Intramedullary Nail Fixation Proximally And Distally
(Claimed as Fractured Tib/Fib)	5262	10%	20%	
				Free Flap Gracilis Graft Distal Medial Aspect Right
Ankle Medial Aspect (Claimed as Loss of Sensation on
Right Foot)	5262-7804	10%	10%	
COMBINED RATING:  30% → 20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Right Calcaneus Fx with Recurrent Osteomyelitis.  The Board noted that the PEB adjudicated two conditions characterized as calcaneus fracture (fx) with osteomyelitis and chronic ankle pain status post ORIF.  However, The PEB rated the first condition according to VASRD rating criteria for osteomyelitis and the second condition, reflecting the residual disability due to ankle pain (with contributions from calcaneus and tibia/fibula fxs) according to the USAPDA pain policy.  The Board notes that the contribution of the calcaneal injury to residual ankle pain can only be rated once IAW VASRD §4.14 (Avoidance of pyramiding) and this is reflected in the ratings discussions below.  However, a rating for the osteomyelitis will be combined with any applicable rating for additional musculoskeletal impairment of the foot (distinct form ankle impairment) as stipulated under the VASRD 5000 code.  

According to the service treatment records (STR) and the Medical Evaluation Board (MEB) Narrative Summary (NARSUM), the CI’s right calcaneus (heel) condition began on 27 May 2003 during deployment after a metal split ring jettisoned from a tire rim during inflation and struck his right leg, ankle, and foot.  The CI sustained an open comminuted fx (open fx-the skin has been broken, comminuted fx- many pieces of bone) of the right calcaneus, a comminuted fx of the tibia and two displaced fxs of the fibula.  The tibia/fibula fxs are discussed separately below.  For the calcaneus fx, the CI underwent surgery for open reduction and internal fixation (ORIF) 11 June 2003.  On 19 June 2003, the CI underwent plastic surgery for repair of the open wound with a skin/muscle flap and nerve grafting of a branch of the posterior tibial nerve (the lateral plantar nerve) with sural nerve graft from left foot and repair of the a tendon of a flexor muscle of the foot and lesser toes (flexor digitorum longus).  The skin graft was determined to be non-viable three days later due to a blood clot and the flap was revised.  In September 2003 the CI developed osteomyelitis of the calcaneus, which involved the talus.  His treatment course was complicated and included surgery for hardware removal, drainage, resection of the calcaneus with placement of a bone graft, prolonged intravenous antibiotics and multiple incision and drainage (I&D) procedures.  In December 2003 he underwent another surgery for subtalar fusion (fusion of the talus and calcaneus bones) and was casted for four months.  An orthopedic clinic note on 30 March 2004 indicated the fxs were “now healing” with resolution of the osteomyelitis.  Despite treatment, the right calcaneus fx with osteomyelitis condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “right calcaneus fracture complicated by osteomyelitis”, “right tib/fib fracture with ORIF”, and “right ankle pain with decreased ROM” for PEB adjudication. 

The permanent profile dated 8 September 2004 listed four conditions:  “calcaneus fracture with chronic osteomyelitis,” “right tibial fracture s/p ORIF,” “right foot deformity” and “right ankle pain.”  The physical limitations included “may use cane/crutches as needed.”  The commander’s statement dated 6 May 2004 indicated the CI was unable to perform his duties due to “reconstructed calcaneus and flexibility of his ankle” and “limited movement of his right foot.”

At the MEB NARSUM examination on 14 May 2004, 9 months before separation, the CI reported right foot pain, aggravated by weight bearing activities and dorsiflexion (DF) of the foot, with difficulty ambulating.  The examiner noted the CI had been out of a cast for 3 weeks.  The physical examination showed decreased sensation of the inner right leg, ankle, and foot.  There was moderate to marked swelling of the ankle with a soft tissue mass in the area of the skin graft, which was well healed and not tender.  There was no bony tenderness and pulses were normal.  There was pain with foot DF and TTP of the Achilles tendon, which testing indicated was intact.  The right ankle reflex was absent.  

The MEB NARSUM addendum on 17 July 2004, 7 months before separation, indicated the CI was hospitalized on 30 June 2004 for recurrent osteomyelitis.  Surgical hardware was removed from the calcaneus and the CI was placed on a six week course of antibiotics.  The wound was left open to heal with wet to dry dressings daily.  The physical examination showed an open right heel wound without exposed bone or purulent drainage.  There was decreased sensation limited to a “small region” of the bottom of the foot.  Ankle/foot ROM was DF 5 degrees and PF 20 degrees.  Radiographs noted a solid subtalar fusion and examination noted it was stable.

The MEB examination (recorded on the DD Forms 2808 and 2807) on 8 September 2004, 5 months before separation, noted an abnormal gait.  There was an “obvious” soft tissue deformity of the inner right ankle and a fallen arch (indicates acquired flat foot deformity).  There was TTP of the ankle.  The right ankle reflex was absent, there was decreased strength (graded 3/5) and decreased sensation of the inner ankle and the bottom of the heel.  The CI was placed on the TDRL on 24 February 2005.  

There were four VA Compensation and Pension (C&P) examinations performed within a week of TDRL placement (a week before to a week after).  The VA C&P neurology, podiatry, orthopedic, and general medical examinations did not note any findings of current acute or chronic osteomyelitis.  There were no additional imaging studies of the right foot noted.  The neurology and podiatry examinations were the two C&P examinations that included physical examination of the right ankle and foot.  

At the VA C&P neurology examination on 17 February 2005, performed 1 week before TDRL placement, the CI reported numbness of the foot and limited ROM with flexion and extension.  Physical examination showed “some limited range of motion in both extension and plantar flexion” with swelling.  There was decreased sensation to touch over the right foot and ankle region.  There was a trace ankle reflex on the right.  The VA neurologist indicated there had been a repair of a lateral plantar and posterior tibial nerve defect with residual “sensory loss.”  

The VA C&P podiatry examination on 26 February 2005, 1 day after TDRL placement, noted an antalgic gait.  There was a viable skin graft.  Sensation was decreased to light touch on the sole of the foot.  There was no motion of the subtalar joint with “exquisite” joint line tenderness.  Ankle ROM was described as “passively limited”.  The podiatrist diagnosed DJD of the subtalar and ankle joints.

The VA C&P orthopedic examination on 1 March 2005, 1 week after TDRL placement, noted that “by May 2004 radiographs showed fusion of the talus and os calcis [calcaneus] with moderate collapse of the midfoot and os calcis.”  The examination noted TTP of the calcaneus.  There were no calluses noted and the graft was intact.  At the VA C&P general medical examination on 2 March 2005, a “normal gait without any limp” was noted.  

The Board directed its attention to its rating recommendations for the calcaneal fx with osteomyelitis at TDRL placement based on the above evidence.  At TDRL placement, the PEB assigned a 20% rating for the right calcaneus fx with recurrent osteomyelitis under the 5000 code (osteomyelitis, acute, subacute, or chronic) along with a 10% rating for chronic right ankle pain, coded 5099-5003.  The VA did not provide a rating for the right ankle under the 5000 code and rated the heel condition 0%, coded 5010-5284 (traumatic arthritis-other foot injury).  However, the VA rated the skin graft of the medial ankle 10%, coded 5262-7804 (impairment of the tibia-fibula-unstable/painful scar); tibial nerve impairment of the right foot 10%, coded 8525 (incomplete paralysis of posterior tibial nerve); and, also provided a 10% rating for the tibia/fibula injury, coded 5262.  

At the time of TDRL placement the CI had only had an initial episode of acute osteomyelitis, followed by a single recurrence, which was still resolving at the time of TDRL entry.  Therefore, Board found that the 5000 code criteria for a 20% rating were not supported, which require two recurrent episodes of osteomyelitis in addition to the initial episode, but members agreed that the evidence supports a 10% rating based on the minimum 10% rating under 5000 criteria for active osteomyelitis.  

Under the 5000 code, the VASRD also notes that “this 10 percent rating and the other partial ratings of 30 percent or less are to be combined with ratings for ankylosis, limited motion, nonunion or malunion, shortening, etc., subject, of course, to the amputation rule.”  The Board readily agreed that the evidence above supports that the residuals of the calcaneal fx would by themselves be unfitting for continued military service apart from the osteomyelitis.  Therefore the Board deliberated a rating for the right foot residual impairment (other than osteomyelitis) due to the calcaneal fx.  

The right foot ultimately required surgical fusion of the subtalar joint and a 10% rating is supported coded as 5272 (subtalar ankyloses) for ankyloses in good weight bearing position.  The Board also reviewed VASRD foot codes to see if a higher rating was supported.  The 5284 rating criteria are subjective with 10% rating for “moderate”, 20% for “moderately severe” and 30% for “severe” “other” foot injury.  The CI’s foot injury was complex with bone fx, soft tissue, nerve, and tendon disruption, all requiring surgical repair.  At examinations proximate to TDRL placement the CI was noted to have an antalgic gait with tenderness, limited ROM, weakness, and sensory loss of the right foot.  Under the 5284 code the VASRD notes “with actual loss of use of the foot, rate 40 percent.”  With these parameters as a guide (0% equals less than moderate foot injury and 40% rating is equivalent to loss of use of the foot), the Board concluded that the foot injury was best characterized as “moderately severe” and rated 20% with 5284.  There was no evidence of pronounced acquired flat foot, malunion or nonunion of the tarsal or metatarsal bones, or ankle ankylosis to warrant higher rating under the respective codes (5276, 5283, 5270) The Board also considered if there was any evidence of impairment of the foot due to nerve injury which could be recommended as separately unfitting and eligible for higher or additional rating under a nerve code.  The residual deficit due to the nerve injury status post nerve grafting was an area of sensory loss and possibly some weakness, but strength may also have been limited by pain.  There was no performance based evidence in record that impairment due to the repaired nerve alone would have had functional implications for continued duty performance.  The Board concluded that additional rating could not be recommended on this basis and any contribution to foot disability from residual nerve impairment was better addressed by using the 5284 code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for osteomyelitis, coded 5000 and 20% for the calcaneus fx coded 5284 at TDRL placement.  

At the TDRL evaluation on 9 January 2006, (10 months after TDRL placement and 2 months before permanent separation) the CI reported right ankle and heel pain and decreased sensation of the top of his foot.  The physical examination showed the ankle scar was well healed and there was no breakdown of the flap.  The examiner noted that the osteomyelitis had resolved and the CI had residual ankle and heel pain following his combined injuries of calcaneal and tibia/fibula fxs.  There were no additional imaging studies of the right foot noted.  There was no VA evidence in record proximate to the date of TDRL removal.

The Board next directed its attention to its rating recommendations for the calcaneal fx and osteomyelitis at TDRL removal based on the above evidence.  At TDRL removal, the PEB assigned a 20% rating for the “right calcaneus fx with osteomyelitis” under the 5000 code (Osteomyelitis, acute, subacute, or chronic) and 0% rating for “chronic right ankle pain status post ORIF,” coded 5099-5003.  A liberal TDRL rating to meet the requisite 30% threshold for TDRL is in the member’s best interest at the time of temporary retirement, and does not mean that a lower rating at the time of permanent separation was necessarily unfair.  Therefore, the sole basis for the Board’s permanent recommendation is its assessment of disability based on evidence proximate to the date of TDRL removal compared to VASRD criteria in effect on that date.  There was no evidence of acute or chronic osteomyelitis at TDRL removal and there was no documentation in record of a history of two recurrent episodes of acute osteomyelitis (not counting the initial episode) for a rating greater than 0%.  There was no significant change documented in the residual of the calcaneal fx between TDRL placement and removal.  Therefore, the Board recommends continuation of the 20% rating, coded 5284 at TDRL removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for osteomyelitis, coded 5000 and 20% for the calcaneus fx coded 5284 at TDRL removal.  

Chronic Right Ankle Pain, Status Post ORIF of Fx of Tibia and Fibula.  As noted above, the CI sustained a comminuted fx of the tibia and two displaced fxs of the fibula in May 2003 in the same incident which caused the calcaneal fx.  He underwent surgery for ORIF of the tibia and fibula in June 2003 with placement of a rod in the tibia.  Serial right ankle X-rays on 30 March and 17 August 2004 noted healing tibial and fibular fxs with “near anatomic alignment.”  The MEB DD2808, MEB NARSUM and addendum examinations are as noted above.

At the VA C&P orthopedic examination the sole C&P examination which addressed the examination of the tibia and fibula) the CI reported pain of the right knee, tibia and ankle, aggravated by walking.  He reported he stopped using crutches four months earlier.  The CI pointed to a tendon below the knee as the area of tenderness (pes anserine -hamstring tendon insertion.)  He denied locking of the knee or ankle.  The physical examination noted knee flexion of 120 degrees and extension 0 degrees.  The right calf was 38 cm and the left was 39.5 cm.  The VA examiner indicated there was “no significant ankle or knee joint pathology found.”  The examiner indicated there was malunion of the fibula at both the proximal and distal fxs, with angulation of 10 degrees and 15 degrees respectively and a healed tibial fx, and tendonitis below the knee related to both.  The VA C&P podiatry, neurology and general medical examinations are summarized above.

The Board directed its attention to its rating recommendations for the chronic ankle pain condition at TDRL placement based on the evidence above.  The PEB adjudicated the chronic ankle pain as indicated above and rated 10% based on the USAPDA pain policy.  The VA rated the fibula and tibia fxs 10%, coded 5262, and the heel condition 0%, coded 5010-5284.  However, the VA also rated the right ankle scar 10%, coded 5262-7804, and nerve impairment of the right foot 10%, coded 8525 (see above under rating of calcaneus condition) as noted previously.  A 20% rating for marked limitation of ankle motion was supported based on the ROM noted by the MEB NARSUM addendum, coded as 5271 (limitation of ankle motion) or coded 5299-5262 and rated 20% for moderate knee or ankle disability and the Board chose to utilize this code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends 20% rating at TDRL placement for the chronic ankle pain condition, coded 5299-5262.

At the TDRL evaluation on 9 January 2006, the CI reported right ankle and heel pain and decreased sensation of the top of his foot.  The physical examination showed the ankle scar was well healed and there was no breakdown of the flap.   The ROM was documented as “negative 15 degrees of dorsiflexion which is comparable to the contralateral side, except that the contralateral had 45 degrees of plantar flexion.”  The examiner noted that the osteomyelitis had resolved and he CI had residual ankle and heel pain following his combined injuries of calcaneal and tib/fib fxs.  In his recommendations, the TDRL examiner noted that the CI “does have preserved range of motion in his foot and ankle after this injury, but is unable to wear military foot gear.”  As noted above, there was no VA evidence in record proximate to the date of TDRL removal.  

The Board considered the rating of the chronic right ankle pain, at TDRL removal.  The PEB rating at permanent separation was summarized above.  There was no VA examination proximate to removal from TDRL; therefore the Board relied on the TDRL evaluation for its rating recommendation at the time of permanent separation.  The Board could not discern if the ankle ROM as described by the examiner at the TDRL evaluation (negative 15 degrees ankle DF) reflected ankle DF of 5 degrees (20 degrees minus 15 degrees) or 15 degrees.  However, the TDRL examiner noted “preserved range of motion” of the foot and ankle and remote VA records noted ankle DF of 10 degrees, therefore, the Board concluded that the CI continued with painful limited ankle ROM, but which was improved since the MEB NARSUM addendum (at which time the CI still had an open, draining wound of the right heel) and supports a 10% rating for “slight” ankle disability at TDRL removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic right ankle pain condition, coded 5299-5262 at TDRL removal.  

BOARD FINDINGS:  In the matter of the “right calcaneus fracture with recurrent osteomyelitis” condition, the Board unanimously recommends a disability rating as follows: unfitting osteomyelitis rated 10%, coded 5000, and unfitting residuals of calcaneal fx rated 10%, coded 5284 at TDRL placement and osteomyelitis rated 0%, coded 5000 and residuals of calcaneal fx rated 20%, coded 5284 at permanent separation, all IAW VASRD §4.71a.  In the matter of the “chronic right ankle pain status post ORIF of fracture of the tibia and fibula” condition, the Board unanimously recommends a disability rating of 20% at TDRL placement and a 10% rating at permanent separation, both coded 5299-5262 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

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

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Osteomyelitis	5000	10%	0%	
Right Calcaneal Fracture Residuals	5284	20%	20%	
Chronic Right Ankle Pain S/P ORIF Tibia and Fibula	5299-5262	20%	10%	
RATING	40%	30% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140203, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160011331 (PD201400668)

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
place the individual on the Temporary Disability Retired List (TDRL) at 40% rather than
30% disability rating for the period February 25, 2005 to March 12, 2006 and then
following this period recharacterize the individual's separation as a permanent disability
retirement with the combined disability rating of 30%.

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 temporary disability 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 day following the six month TDRL period.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will
account for recoupment of severance pay, provide 40% retired pay for the constructive
temporary disability retired period effective the date of the individual's original medical
separation and then payment of permanent disability retired pay at 30% effective the
day following the constructive TDRL period.

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:

CF:
( ) DoD PDBR
( ) DVA