RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01954
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150506
SEPARATION DATE:  20040515

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for right ankle and mid-foot pain as well as chronic neck pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards, but he was authorized to perform an alternate aerobic event for the physical fitness test.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The conditions characterized as “recurrent medical instability of the right ankle, degenerative joint disease of the mid-foot, chronic myofascial neck pain and right cervical radiculopathy” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated right ankle and mid-foot pain as well as chronic neck pain unfitting, rated 10% and 10%, with likely application of the US Army Physical Disability Agency pain policy and the  Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition, right cervical radiculopathy, was included in the PEB rationale and rating with the chronic neck pain.  The CI appealed to the Formal PEB (FPEB) to which the IPEB prepared and sent a written response.  The CI initially demanded a FPEB, but subsequently waived this request.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.” 

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/Naval 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 20040113	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle and Mid-Foot Pain…	5099-5003	10%	Arthritis, Right Mid-Foot with Chronic Right Ankle
Sprains…	5010-5271	0%	STR	
Chronic Neck Pain…	5243	10%	No VA Placement	
Other x 0 (Not In Scope)	Other x 3 (equals SC, NSC & deferred)	
RATING:  20%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20050323 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Ankle and Mid-Foot.  The CI was evaluated in Orthopedics on 14 February 2003 for a history of chronic right ankle pain with a reported fracture in 1998.  On examination, the ankle was stable and the range-of-motion (ROM) was full.  Cross-training or an MEB was recommended for consideration.  At a neurosurgical evaluation for his neck on 19 June 2003, he was noted to have a normal gait.  X-rays on 30 June 2003 were unremarkable without evidence of arthritis or of widening of the joint on stress views.  At the MEB examination on 10 July 2003, the examiner noted tenderness over the medial (inside) ankle.  The narrative summary (NARSUM) was dated 27 August 2003.  The CI reported a history of right ankle sprains, but that he was not sure why he had been referred for an MEB for his ankle condition.  He reported the use of braces when not wearing his boots, but that he was not currently having problems with “rolling his ankle” as he was not marching or running.  The ROM was full and his gait normal (non-antalgic).  Some laxity with eversion was noted; this was not seen at the previous orthopedic examination.  Degenerative changes were documented as present on X-ray; this is not consistent with the only X-ray report in evidence prior to separation though (above).  Formal ROM measurements in physical therapy (PT) on 9 November 2003 showed a significant reduction in dorsi-flexion (normal at the orthopedic examination 9 months earlier and at the NARSUM) with normal plantar flexion.  

The VA Compensation and Pension (C&P) examination was not performed until 2010, 6 years after separation.  This is well outside the normal 12-month window for higher probative value.  However, the pre-separation values were essentially normal until a few months prior to separation.  Although the CI complained of limitations in walking and standing with both restricted to 10–15 minutes, the CI showed a normal ROM without evidence of painful motion, tenderness, or instability on examination.  This examination is consistent with that recorded by the orthopedic surgeon and the NARSUM examiner prior to separation and increases their probative value over the PT measurements.  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)	Ortho ~15 Mo. Pre-Sep
(20030214) p.711	MEB ~9 Mo. Pre-Sep
(20030827) p.34	PT 5 Mo. Pre-Sep
(20031209) p.40	
Dorsiflexion (20 Normal)	20	FROM	5 (5/5/5)	
Plantar Flexion (45)	45 (50)	FROM	45 (42/45/45)	
Comment	Stable ankle	Non antalgic gait	AO	
§4.71a Rating	0%	0%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle mid-foot condition at 10% using the code 5099-5003 (analogous to degenerative arthritis).  The VA rated the condition at 0%, noting that the CI did not show for the scheduled C&P examination, using the code 5010-5271 (traumatic arthritis and limited motion of the ankle).  This rating was upheld on future adjudications by the VA.  The Board considered the evidence and found no route to a rating higher than the 10% assigned by the PEB.  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 right ankle and mid foot condition.  

Chronic Neck Pain with Radiculopathy.  The CI was seen in May and June 2003 for neck pain which began after working out.  An evaluation in the pain clinic on 11 June 2003 noted that his pain began in 1998 after a heavy box fell onto his neck.  He also reported a temporary paralysis associated with this.  No contemporaneous records which document this are in evidence.  On examination, he had normal strength, but reduced light touch over the right thumb and index finger (the distribution of the median nerve, a peripheral nerve, rather than a neck nerve root).  His reflexes were normal.  At a neurosurgical examination on 19 June 2003, he reported several injuries to his head and neck with persistent pain.  On examination, he had a normal gait with tenderness over the cervical spine at C5-6, the site of a herniated disc on MRI.  The motor and reflex examinations were normal; the sensory examination showed decreased light touch in the forearm and hand.  An X-ray that day showed disc space narrowing at C5-6 with degenerative joint disease (DJD) at the same level.  He was seen in PT on 22 July 2003 and noted to have full ROM of the neck.  He was again evaluated in neurosurgery on 11 September 2003 and had full ROM of the neck with a normal motor examination.  A week later in Physical Medicine, the CI reported that a steroid injection had not relieved his pain.  Sensation was reduced in a right C8 distribution, but the motor and reflex examinations were normal.  At the MEB examination, the CI reported multiple neck injuries.  The examiner noted tenderness along the cervical spine, but a normal neurological examination.  The NARSUM addendum for the neck condition only noted that the CI had significant pain which interfered with the performance of duty.  As noted above, the VA C&P examination was not performed until 6 years after separation.  The CI reported neck pain which radiated into his right arm.  On examination, the head position was normal.  Atrophy, spasm, tenderness, guarding, painful motion, and weakness were all absent.  Flexion exceeded the VA normal 45 degrees by 15 degrees (60 measured).  The combined ROM was 225 (normal 340).  The motor (other than from pain) and reflex examinations were normal, but sensation was decreased in the distribution of the median nerve.  It noted that multiple electrodiagnostic studies, beginning on 30 September 2003, showed median nerve changes consistent with a carpal tunnel syndrome, but no evidence for a cervical radiculopathy.  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.

Cervical ROM
(Degrees)	PT ~5 Mo. Pre-Sep	
Flex (45 Normal)	40	
Combined (340)	---	
Comment	AO	
§4.71a Rating	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The CI showed normal or near normal ROM on multiple examinations.  The neurological examination was most consistent with entrapment of the median nerve on the right and did not show consistent evidence of a cervical radiculopathy.  The PEB rated the neck condition at 10% using the code 5243 (intervertebral disc syndrome).  The VA initially determined that the neck was not service connected, but the 17 November 2006 VA rating decision assigned a 10% rating using the code 5237 (cervical strain) effective 17 March 2006, based on post-separation evidence.  The Board considered the evidence and found no route to a rating higher than the 10% assigned by the PEB.  The Board also considered if an unfitting radiculopathy was present at separation and determined that the evidence does not support the presence of such a condition and that it cannot be recommended for additional disability rating.  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 neck condition.  

Contended PEB Conditions.  The Board noted that the CI also petitioned the PEB for inclusion of a mental health condition, anxiety, as an unfitting condition at separation.  The Board’s main charge is to assess the fairness of the PEB’s determination that an “anxiety disorder or depression” 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.  No mental health condition was implicated in the commander’s statement and the CI maintained an S1 profile.  The mental health examiner noted that the CI had been treated for a mental health condition, but that he had additional symptoms secondary to his upcoming separation and an ongoing divorce.  It was noted that the continued to work productively and the condition was not judged to fail retention standards by the MEB.  It was reviewed and considered by the Board.   There was no performance based evidence from the record that it 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 mental health 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 neck and back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mental health 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140501, 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 XXXXXXXXXXXXXXXXXXXX, AR20150014202 (PD201401954)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA