RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01398
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20071205

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Food Service Specialist, medically separated for “arthritis due to trauma,” with a disability rating of 10%.

CI CONTENTION:  The CI’s condition continues to worsen and negatively impacts daily activities.  The CI’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 - 20071010	VARD - 20090203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Arthritis Due to Trauma	5010	10%	Residuals, Status Post Left Tibia/Fibula Fracture with ORIF Left Ankle, Severe Tibiotalar Post Traumatic Osteoarthritis	5262	20%	20081112	
Right Patellar Fracture Status-Post Open Reduction Internal Fixation (ORIF)	Meets Medical Retention Standards	Residuals, Status Post Patella Fracture, Right Knee	5010	10%	20081112	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Left Ankle Pilon Fracture.  The Medical Evaluation Board (MEB) forwarded two conditions to the PEB as not meeting retention standards;  “left ankle Pilon fracture with post traumatic arthritis” and “right calcaneal fracture status post subtalar effusion,” and two conditions as meeting retention standards “right patellar fracture” and “multiple soft tissue procedures (skin grafting).”  The PEB combined the left ankle and the right calcaneal fracture conditions and rated as a single unfitting condition characterized as “arthritis due to trauma” according to VASRD 5003 rating criteria for “arthritis of two major joints without range of motion (ROM) issues.”  

The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints may be permissible under the VASRD 5003 rating requirements.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the Disability Evaluation System (DES) or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the left ankle and right foot conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to service treatment records and the MEB narrative summary (NARSUM), the CI was involved in a motor vehicle accident (MVA) in 2003 and sustained right and left patella fractures, right calcaneal fracture and left ankle fracture.  The CI underwent surgery for open reduction and internal fixation (ORIF) of the left ankle fracture in 2003 and later a second surgery on the left ankle with bone grafting.  The CI continued with ankle pain and a computed tomography (CT) scan in February 2005 showed degenerative changes and hardware that may have been encroaching on the joint.  The CI underwent surgery for removal of tibial hardware and joint debridement 22 April 2005.  The operative note indicated that 40-50 degrees of ankle motion were achieved during the surgery, but at an orthopedic follow-up in 1 February 2006 the CI reported increasing left ankle pain and the examination showed ankle range of motion (ROM) of 5 degrees dorsiflexion (DF) and plantar flexion (PF) of 30 degrees with crepitus.  Left ankle radiological (X-rays) studies noted degenerative joint disease with impingement of the ankle.  Surgical options were discussed but the CI chose a customized brace to reduce the pressure across the front of the ankle.  

Despite treatment, the left ankle 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 “left ankle pilon fracture with post traumatic arthritis” for PEB adjudication.  The MEB NARSUM examination on 22 September 2006 (14 months prior to separation) noted that the CI was able to walk with a normal gait wearing a left ankle brace, but was unable to do this without the brace.  An addendum dated the same day indicated the L2 profile had been upgraded to L3 due to the left ankle condition.  A prior L3 permanent profile dated June 2006 listed the left ankle Pilon fracture and right calcaneus fracture.

At an orthopedic follow-up appointment on 15 November 2006, the CI reported the brace was helpful, but stated that she had pain and swelling in the ankle, but it was manageable.  The examination noted tenderness to palpation (TTP) of the ankle with “significantly diminished motion” and crepitus.

The commander’s statement dated 19 January 2007 indicated that the CI’s duty performance was impaired by her “continuous problems with her legs and feet.”  The permanent profile listed left ankle Pilon fracture, right calcaneal talar fracture, right patella fracture and open reduction, internal fixation of left Pilon fracture.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 16 May 2007, 8 months prior to separation, the CI reported left ankle pain.  The CI was using a left ankle orthosis and reported no medications.  Physical examination showed a left limp.  The CI was unable to heel or toe walk.  Ankle dorsiflexion was noted to be limited to approximately 0 degrees.

At the MEB orthopedic evaluation on 17 May 2007, the CI reported increase in pain and loss of function of the ankle with walking and standing.  She reported use of an ankle brace and occasional use of anti-inflammatory medication for pain.  The examination showed a non-antalgic gait with the left orthosis.  The surgical scars were well healed.  There was palpable surgical hardware in the area of the distal fibula.  There was pain with passive DF of the ankle with normal ROM of the subtalar and tarsal joints and great toe.  Pulses were intact with decreased sensation noted on the top of the foot.  The CI was unable to toe walk.  At the MEB physical therapy ROM evaluation on 23 May 2007, left ankle DF was reported as minus 2, minus 3, and minus 3 degrees and PF of 28, 30 and 31 degrees.  In a response to the PEB dated 31 August 2007, an internal medicine specialist stated that the CI used a left ankle brace and without it there was no evidence of a foot drop.  Hand written notes by the same examiner on the same day indicated left ankle DF of approximately 20 degrees and PF of approximately 30 degrees.  Left ankle X-rays performed on 31 August 2007 noted intact hardware in the distal fibula and “severe” post-traumatic arthritis.

At the VA Compensation and Pension (C&P) evaluation on 21 April 2008, performed 5 months after separation, the CI reported left leg and ankle pain.  She reported no medication use and was not in treatment for the left ankle condition.  The examination noted a limp and use of a cane, without use of a brace.  There was moderate swelling with limited ROM, with pain and crepitus.  The CI was noted to be limited in walking, but otherwise independent in normal routine daily activities.  At the VA (C&P) evaluation on 12 November 2008, performed 11 months after separation, the CI reported left ankle pain with flare-ups twice weekly lasting 1 to 2 days with swelling and difficulty walking and standing.  Ankle pain with the brace was graded 5-6/10 and without the brace, 8-9/10.  She reported using a left ankle brace and cane for walking, intermittently, but frequently.  She denied incapacitating episodes of arthritis.  The examination showed ankle swelling and an abnormal gait with evidence of abnormal weight bearing on the foot and left shoe.  The ROM was described as “- [minus] 10 to 0 degrees DF” and “pain ends at 5 degrees” and 30 degrees PF, with painful motion and no additional loss of ROM with repetition.  Left tibia and fibula X-rays showed ankle arthritis and surgical HW.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the left ankle and right foot conditions and rated 10%, coded 5010 (traumatic arthritis), citing arthritis of two major joints.  The VA rated the ankle condition 20%, coded 5262 (tibia and fibula impairment) citing “moderate knee or ankle disability.”  The Board first considered if the left ankle fracture remained unfitting when separated from the PEB’s combined adjudication.  The CI underwent surgery on the left ankle. The left ankle was permanently profiled; implicated by the commander’s statement as impairing the CI’s duty performance; and, forwarded by the MEB as not meeting retention standards.  The Board agreed that the left ankle condition was reasonably considered unfitting at separation and therefore eligible for individual rating.  The Board agreed that the left ankle ROM examinations proximate to separation detailed above were consistent with a “marked” limitation of motion required for the maximum 20% rating under 5271 (ankle limitation of motion) supported by the presence of an abnormal gait with limited painful ankle motion noted at the majority of examinations in record, with swelling and crepitus noted at some examinations.  

The Board considered if a higher rating was supported using the 5262 code (tibia and fibula, impairment of).  This approach offers a higher 30% for “marked” ankle disability.  However, Members agreed, there was no nonunion or malunion to warrant consideration under this code.  There was no evidence of ankle ankyloses to warrant consideration under 5200 (ankylosis).  There is therefore no higher rating available with any applicable VASRD code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the left ankle condition, coded 5271.  

Right Calcaneal Fracture.  According to the STR and the NARSUM, the CI sustained a right calcaneal fracture in the 2003 MVA as referenced above.  She underwent delayed treatment for the calcaneal fracture with ORIF and subtalar fusion in approximately February 2004.  An orthopedic evaluation on 1 February 2006 noted the CI “had not had any problem in the right foot to this point.”  Right foot X-rays showed satisfactory ORIF and subtalar fusion.  Despite treatment, the right calcaneal fracture 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 calcaneal fracture status post subtalar fusion” for PEB adjudication.  The MEB NARSUM examination on 22 September 2006 (14 months before separation) noted a normal gait with a brace on the left ankle but did not address examination of the right foot.

At an orthopedic appointment on 15 November 2006, the CI reported pain in her right great toe aggravated by shoes.  The examination noted a right hallux valgus deformity (bunion) with clawing of the big toes and lesser toes.  The CI was prescribed anti-inflammatory medication for all musculoskeletal issues which included left ankle pain, bilateral knee pain, and the right foot pain.  For the right foot pain specifically, a toe spacer and a change in footwear were recommended.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 16 May 2007, 7 months prior to separation, the CI reported pain of the left ankle and right knee graded 5/10, and current use of over the counter anti-inflammatory medication as needed.  At the MEB orthopedic evaluation on 17 May 2007, the CI reported that her right foot and ankle were “without pain or problems.”  The examination noted a normal gait with assistance of the left ankle brace.  The surgical scar was well healed and the area of the fracture was not tender to palpation (TTP). There was normal right foot motion.  At the MEB physical therapy ROM evaluation on 23 May 2007, right ankle ROM was DF of 2, 2, and 3 degrees and PF of 47, 47, 48 degrees.  Bilateral leg X-rays on 31 August 2007 showed right ankle post-traumatic osteoarthritis.  

At the 21 April 2008 VA C&P evaluation, performed 5 months after separation, the CI reported right heel pain.  The examination noted right heel pain with palpation, motion, and weight bearing.  Right foot X-rays showed surgical hardware and fusion of the talocalcaneal joint.  The 12 November 2008 VA C&P evaluation, performed 11 months after separation, did not address the right foot and VA records indicated that only the left ankle and right knee were claimed by the CI.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the combined left ankle and right foot conditions 10%, coded 5010 for arthritis of two major joints.  The original VA Rating decision did not rate any condition of the right foot.  The Board first considered if the right calcaneal fracture remained unfitting when separated from the PEB’s combined adjudication.  The CI underwent surgery on the right foot. The right foot was permanently profiled; implicated by the commander’s statement as impairing the CI’s duty performance; and, forwarded by the MEB as not meeting retention standards.  

The Board agreed that the right foot condition was reasonably considered unfitting at separation and therefore eligible for individual rating.  Despite the severity of the right foot calcaneal fracture, notes in record support that the CI did well following the ORIF and subtalar fusion surgery.  In the service treatment records, the CI did not report problems with the right foot and ankle at any visits for the MEB (MEB DD Form 2808, MEB NARSUM examination, or MEB orthopedic evaluation) and she was repeatedly noted to have a normal gait with use of the brace for her left ankle.  The CI noted right heel pain at the C&P examination in April 2008; however, she did not make a claim to the VA for right foot disability.  Therefore, the Board determined that the disability due to the right foot condition was not considered moderate and therefore was appropriately rated 0% IAW §4.31 (zero percent evaluations), coded 5284 (other foot injury).  The CI underwent surgical fusion of the subtalar joint.  However, the fusion itself was an anticipatable result of the treatment intervention and absent any residual difficulties, the Board determined that a 10% rating was not warranted under 5272 (subastragalar or tarsal joint ankyloses) based on surgery alone.  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 the calcaneal fracture condition, coded 5284.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right patella fracture condition was 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.  

According to the service treatment record and the NARSUM the CI sustained a comminuted (many pieces) fracture of the right patella in the same 2003 MVA as detailed above.  She underwent ORIF and partial removal of the patella in 2003.  The CI experienced a post-operative knee infection and eventually required a skin graft. Neither the L2 permanent profile dated January 2005 nor the L3 permanent profile dated June 2006 listed the right patella.  An orthopedic clinic note dated 22 September 2006 indicated an initial visit for an MEB for the right knee and left ankle. 

At an orthopedic follow-up visit 15 November 2006, the CI reported bilateral knee pain, most noticeable at night.  The examination noted that the right surgical scar was well healed.  There was no joint line tenderness of either knee.  There was TTP of the patellofemoral area and possible “mild” patellar mal-tracking.  The CI was prescribed anti-inflammatory medication for bilateral knee pain, left ankle pain, and right foot pain.  For the knees specifically, therapeutic exercises were recommended.

During the MEB examination the CI indicated the use of over the counter medication as needed when the right knee ached.  The examination noted a scar and defect over the patella from the skin graft.  At the MEB orthopedic evaluation on 17 May 2007, the CI reported occasional bilateral knee pain, with increased activity or prolonged sitting.  The examination noted a well healed surgical scar with deformity about the medial patella and an intact skin graft, with a negative patellar grind test.  Right knee ROM was described as full, without pain, and there was adequate patellar excursion without discomfort.  There was no evidence of knee instability and strength was normal.  At the MEB physical therapy ROM evaluation on 23 May 2007, right knee ROM was flexion of 126, 126, and 127 degrees (normal 140) and extension of 0 degrees (normal 0).  Right knee X-rays 31 August 2007 showed lateral patellar subluxation, osteoarthritis and degenerative changes of the knee.

At the 21 April 2008 VA C&P evaluation, performed 5 months after separation, the CI reported right knee pain.  She reported use of a cane for the left ankle and right knee.  The examination noted a well healed right knee scar, knee swelling, and the CI reported pain with knee motion.  Right knee X-rays showed degenerative joint disease.

At the 12 November 2008 VA C&P evaluation, performed 11 months after separation, the CI reported constant right knee pain.  The examination showed knee flexion of 110 degrees and extension of 0 degrees, with crepitus, painful motion and no additional loss of ROM with repetition.  There was no patellar grinding, evidence of instability or meniscal abnormality. 

The “right patella fracture” was listed on the profile and the commander’s statement indicated the CI’s problems with her “legs and feet” impaired her duty performance.  However, the MEB stated the right patellar fracture condition “meets retentions standards.”  The Board majority could not find evidence indicating any significant interference with performance of duties.  The physical findings documented occasional pain and which would not logically be associated with significant disability.  Profiles prior to the MEB did not include the right knee.  Furthermore, the CI had left ankle and right foot problems in addition to the right knee condition and the MEB NARSUM examiner indicated that the CI’s L2 profile was upgraded to a permanent L3 profile based on the left ankle condition.  The PEB adjudicated the condition as “meets medical retention standards.”  The Board majority concluded that there was not a preponderance of the evidence to support that the right knee would have been unfitting for continued military service.  

After due deliberation, the Board majority concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the right patella fracture and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the arthritis due to trauma condition the Board unanimously recommends a disability rating as follows: an unfitting left ankle Pilon fracture rated 20%, coded 5271 and a right calcaneal fracture condition rated 0%, coded 5284, both IAW VASRD §4.71a.  
In the matter of the contended right patella fracture condition, the Board majority recommends no change from the PEB determination as not unfitting.  The single voter for dissent submitted the appended minority opinion.  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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Ankle Pilon Fracture	5271	20%	
Right Calcaneal Fracture	5284	0%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, 20140318, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion:

The minority voter differed with the Board majority in only one regard - whether the right knee condition was unfitting at the time of separation.  The minority voter rationale for the fitness and rating recommendations for the right knee condition are offered below for consideration.

As noted above, the “right patella fracture” was permanently profiled and the commander’s statement indicated the CI’s problems with her “legs and feet” impaired her duty performance.  The CI sustained a fracture of the right patella during active duty and had right knee ORIF surgery and imaging proximate to separation noted right knee degenerative joint disease and patellar mal-tracking.  An orthopedic clinic note indicated the CI was referred for an MEB due to the left ankle, right foot, and right knee conditions and the MEB orthopedic NARSUM listed all three diagnoses as well.  The Board minority concluded that a preponderance of the evidence supports that the right knee would have been unfitting for continued military service, in the absence of the CI’s other injuries of the left ankle and right foot.  

Therefore, the minority voter considered a rating based on the above evidence.  The VA rated the right knee condition 10%, coded 5010 (traumatic arthritis).  There was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  There was evidence of degenerative arthritis and limited motion of a single joint supporting a 10% rating coded according to 5003 rating criteria.  An X-ray in August 2007 reported lateral subluxation of the patella.  However, there were no reported or documented patellar subluxations or dislocations and examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257).  There was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) or history of surgery to remove a meniscus (5259) to support a rating under the respective codes.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There is therefore no higher rating than 10% available with any applicable VASRD §4.71a code.  

After due deliberation, the Board minority voter recommends that the functional impairment of the right patella fracture condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 5099-5003 and meets the VASRD §4.71a criteria for a 10% rating.

The Board minority voter respectfully 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 of her prior medical separation:  

CONDITION	VASRD CODE	RATING	
Left Ankle Pilon Fracture 	5271	20%	
Right Calcaneal Fracture	5284	0%	
Right Patella Fracture	5099-5003	10%	
RATING w/BLF	30%	

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, AR20160010068 (PD201401398)

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 reject the Board’s majority recommendation to modify the disability rating to 20%
rather than10% and accept the minority opinion to 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 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
30% 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:

Enclosure
CF:
( ) DoD PDBR
( ) DVA