RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01299
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (M1 Armor Crewman),  medically separated by the Informal Physical Evaluation Board for “right ankle osteochondral defect” and “chronic low back pain” rated 0% and 0%, respectively; with a combined disability rating of 0%.  

CI CONTENTION:  The PTSD, tinnitus and peroneal nerve conditions were not adjudicated by the MEB/PEB.  The remaining redress of his contention is covered in the SCOPE OF REVIEW below.  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 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:  

IPEB - Dated 20060803	VA* - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition**	Code	Rating	Exam	
Right Ankle Osteochondral Defect	5099-5003	0%	Right Ankle Disorder	5271	0%	STR	
Chronic Low Back Pain	5299-5237	0%	Low Back Disorder	5237	0%		
Right Shoulder	Not Unfitting	Right Shoulder Disorder	5201	0%		
Right Knee		Right Knee Disorder	5260	0%		
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	
*Derived from VA Rating Decision (VARD) dated 20070428 (most proximate to date of separation [DOS]).  **All increased 3 years after separation

ANALYSIS SUMMARY:  

Right Ankle Osteochondral Defect.  The CI was first seen for right ankle pain on 21 July 2003 the day after he twisted it while playing basketball.  He was treated with medications, duty restrictions, and physical therapy (PT).  He apparently did well until February 2005 when he reported on going right ankle pain.  In PT on 28 February 2005, his gait and range-of-motion (ROM) were normal, but signs of instability present.  An X-ray that day showed degenerative changes of the cartilage lining an ankle bone.  On an MRI accomplished on 13 March 2005, the degenerative changes were present as well as ligamentous injury consistent with recurrent strain.  He then underwent surgical repair on 20 May 2005.  X-rays done after surgery showed healing of the cartilage lesion.  In PT on 21 November 2005, 6 months after surgery and just under 12 months prior to separation, he reported ongoing pain and subjective instability.  His gait was normal and the ROM reduced bilaterally, but more on the right.  One test of instability was positive.  A repeat X-ray on 7 February 2006 was normal.  In orthopedics that same day, the CI reported pain with running and squatting, but denied instability.  The ROM was reduced as recorded below.  His ankle was stable and he was thought to have an impingement which was treated with an injection.  At the MEB examination dated 27 April 2006, 6 months prior to separation, the CI reported chronic pain.  The MEB physical examiner noted that the CI could not heel or toe walk due to pain and limited ROM (below).  The orthopedic addendum to the narrative summary (NARSUM) was dated 10 May 2006.  The examining orthopedic surgeon did not specifically examine the ankle, but did note that there was no atrophy of either lower extremity and the motor function was normal.  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.

Right Ankle ROM
(Degrees)	PT~12 Mo. Pre-Sep	Ortho ~9 Mo. Pre-Sep	DD 2808 ~7 Mo. Pre-Sep	MEB ~7 Mo. Pre-Sep	
Dorsiflexion (20 Normal)	8 (Left 12)	10	10	0,0,0	
Plantar Flexion (45)	30 (Left 38)	30	20	35,40,40	
Comment	Normal gait with boots and barefoot; Some laxity	Stable to examination	Toe and heel walk limited by pain	Limited by pain	
§4.71a Rating	10%	10%	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the ankle condition at 0%, coded 5099-5003.  The VA also rated the ankle at 0%, but this was due to the “no-show” by the CI for the scheduled compensation and pension C&P examination.  The VA later rated the ankle at 10%, but based on a C&P examination over 3 years after separation which reduces the probative value at separation.  The probative value is further reduced by a history of recent foot surgery for an unrelated condition.  The Board noted that three of the four examinations available for review support a 10% rating for both limited and painful ROM.  While one examination supports a 20% rating, this is only if the limitation in the unaffected left ankle is not considered.  Regardless, it remains an outlier from the other examinations which are considered to be more probative due to consistency between sets of measurements.  Although not used for adjudication, the Board noted that the VA examination also supported a 10% rating.  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 right ankle condition, coded 5271 (limited motion of the ankle).  

Chronic Low Back Pain.  The first record in evidence for low back pain (LBP) was dated 4 November 2005 following physical fitness training (standing up after push-ups).  At a primary care appointment on 11 January 2006, he denied any history of trauma and noted onset after his foot surgery (above).  An X-ray that day showed mild narrowing of the disk space at L5-S1.  However, an MRI on 2 February 2006 was normal.  He was evaluated in physical medicine (PMR) on 27 March 2006 and reported that his back pain dated to a motor vehicle accident (MVA) while deployed 2 years earlier.  He was non-tender on examination but pointed to the L4-5 area as the approximate location of his pain.  He could forward flex to the mid-shin bone (over 60 degrees) before he stopped due to severe pain.  However, he did not complain of pain when he straightened up.  He also had pain with pelvic torque, but his examination was otherwise unremarkable.  He was thought to have strain of the soft tissues.  At the MEB examination dated 27 April 2006, the CI reported a 2-year history of LBP with radiation down his legs.  The neurological examination was normal other than bilateral abnormal sensations reported by the CI.  The motor function of right foot was not tested due to pain.  The ROM was reduced to 20 degrees of extension and 85 degrees (partially illegible, but consistent with the drawing) flexion with normal rotation and side bend.  The ROM testing in PT on 5 May 2006 was markedly reduced and had flexion limited to 30 degrees with a combined ROM of 150 degrees.  The orthopedic addendum on 10 May 2006 noted ongoing LBP since the MVA in 2004.  The examination was normal including ROM, neurological, and muscle bulk.  An X-ray again showed narrowing of the L5S1 disk space, consistent with an earlier X-ray, but not with the MRI.  The NARSUM noted normal reflexes and motor function without comment on sensation.  Neither tenderness nor spasm was present.  The cited ROM was from the PT noted above.  The VA C&P examination was not until over 3 years after separation, but noted normal ROM other than flexion which was limited to 65 degrees.  Three months later on 8 July 2010, he was noted to have full ROM at a primary care appointment.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 0%, coded 5299-5237 (analogous to lumbosacral strain), and noted painful motion.  The Board observed that painful motion supports a 10% rating IAW VASRD §4.59 (painful motion).  The VA also rated the LBP at 0%, coded 5737, noting that the CI was a “no show” for the scheduled C&P examination.  The LBP was subsequently rated 10% based on post-separation evidence as discussed above for the right ankle.  The Board considered the evidence.  The neurological examination was typically normal other than subjective complaints.  The X-rays showed degenerative disc disease at L5-S1; however, an MRI, a more sensitive test, was normal.  The ROM measured in the MEB PT evaluation supports a 40% rating for the limitation in flexion.  However, this is not consistent with the normal ROM documented 5 days later by an orthopedist, the other ROM measurements before and after separation, or the objective evidence of the pathology present.  The preponderance of evidence supports no more than a 10% rating for painful and limited motion.  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 LBP condition, retaining the 5237 code.  The evidence does not support the presence of an unfitting radiculopathy at separation.  The Board concluded therefore that this condition could not be recommended for additional disability rating.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended right shoulder and right knee pain were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The insert conditions were profiled, implicated in the commander’s statement and were judged to fail retention standards.  Nonetheless, the PEB determined that both conditions were not unfitting.  It noted that the CI had complained of right shoulder in 2002, but had not been seen for it the previous 3 years.  The Board reviewed the service treatment records and found no clinical entries after 2002 until the CI was in the MEB process in 2006.  On the orthopedic addendum to the NARSUM, the examiner noted reduced and painful ROM, but normal strength and symmetric musculature without atrophy.  Both an MRI and X-ray were noted to be normal other than degenerative changes of the acromioclavicular joint (scapula and collar bone).  At the VA C&P examination 3 years after separation, the CI reported that he had no functional impairment from the right shoulder condition.  The CI was first noted to have right knee pain in January 2005 when he reported atraumatic knee pain associated with the right ankle injury.  The examination and an X-ray were unremarkable other than a small fluid collection above the kneecap noted on the X-ray.  Repeat X-rays on 28 April 2006 and 10 May 2006 were normal.  The orthopedic NARSUM examination was essentially normal other than slightly reduced flexion and misalignment of the kneecap.  There is no record of treatment for the right knee condition during the last 12 months of duty.  At the VA C&P examination, the CI denied incapacitation, but reported trouble walking.  On examination, he had an abnormal gait, but this was attributed to recent foot surgery.  The knee was stable, but flexion reduced due to pain.  X-rays remained normal.  Both conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance at the time of separation.  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 either of the contended 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.  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 right ankle pain condition, the Board unanimously recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended right shoulder and right knee conditions, the Board unanimously recommends no change from the PEB determination 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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Right Ankle Osteochondral Defect	5271	10%	
Chronic Low Back Pain	5237	10%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131222, 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 XXXXXXXXXX, AR20160003978 (PD201401299)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA