RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	     CASE:  PD-2014-02889
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150204
SEPARATION DATE:  20021220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Infantryman) medically separated for left foot and right ankle injuries.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “severe pain and instability at the left Lisfranc area status post open reduction and internal fixation” and “right talar dome lesion status post right ankle sprain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB consolidated the MEB diagnoses as a single unfitting condition, “left foot and right ankle pain with a history of injury,” rated 20%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated. 

CI CONTENTION:  The applicant requests consideration of all conditions in his application.  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/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 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:  

 IPEB – Dated 20021105	VA (~2 Wk. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Foot and Right Ankle Pain…	5099-5003	20%	Residuals, Lisfranc Fracture, Left Foot	5284	20%	20030108	
			Chronic Right Ankle Sprain	5299-5284	**	20101028	
Other x 0 (Not In Scope)	Other x 0 	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20030124 (most proximate to date of separation [DOS]).  ** Condition deferred on initial VARD (above). Ultimately rated 10% by VARD dated 20111017, effective 20100707, (~8 yr.  Post-separation).
ANALYSIS SUMMARY:   As noted above, the PEB combined left foot and right ankle conditions under a single disability rating, coded analogously to 5003.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003 (notwithstanding that the foot condition does not constitute a joint), it allows separate ratings for separately compensable joints. The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the left foot and right ankle conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Left Foot.  There are comments in the service treatment record (STR) noting an initial injury of the left foot during basic training, but the earliest STR clinical entry is from November 2001 (~12 months prior to separation) which notes persistent foot pain following a re-injury (parachute landing) in August 2001.  An X-ray at that time was suggestive (retrospectively) of preceding ligamentous injury (minimal separation of second metatarsal and cuneiform) and possible non-union of an old metatarsal fracture (base of 2nd).  The CI was referred to orthopedics, and in December 2001 was diagnosed with a Lisfranc joint injury (mid-foot disruption between metatarsals and ankle joint).  He failed conservative interventions and in April 2002 underwent surgery (bone graft and screw fixation of 1st to 3rd metatarsals to cuneiforms).  Follow-up podiatry, orthopedic, and physical therapy (PT) entries document satisfactory recovery and progressive ambulation.  Post-operative X-rays showed satisfactory fusion, and range of motion at the ankle was measured as 14⁰ dorsiflexion (normal 20⁰), and 40⁰ plantar flexion (normal 45⁰).  

The narrative summary (NARSUM) was conducted (by podiatry) on 14 August 2002 (4 months prior to separation); and, documented, “He states that he is still hurting and the pain is actually worse than beforehand.”  The examiner noted an inability to run, “can walk but not fast enough to pass the PT test,” and toleration of standing for 20 minutes.  The physical exam did not comment on gait; but, noted tenderness over the surgical site with mild foot angulation (“valgus splay at the Lisfranc area”) and a flattened arch, and pain on motion of the foot.  The examiners diagnostic impression was “severe pain and instability at the left Lisfranc area.”  The commander’s performance statement documented that the CI “is not currently able to perform all the duties required of him ... due to medical problems with his leg.”  The permanent L3 profile was for “left Lisfranc’s injury, chronic pain/instability.”

There is probative STR evidence in the interval between the NARSUM and separation.  An entry of 27 October (8 weeks prior to separation) records, “It hurts after I exercise or walk a long distance ... I am definitely improving.”  This entry, and another 2 weeks later, documented a persistent “slight” limp.  An entry of 6 December (2 weeks prior to separation), however, records “worsening pain” and notes the use of a cane.  The final STR entry (13 December, a week prior to separation) raises the suspicion of RSD (reflex sympathetic dystrophy, a significantly painful nerve condition) complicating the surgery and the possible need for revision surgery (which in fact was performed by the VA 6 months later).  

A VA Compensation and Pension (C&P) examination was conducted 8 January 2003 (19 days after separation); and, the examiner documented “constant sharp shooting pains ... cramping in the arch of his foot at times ... associated with stiffness, swelling ... fatigability and lack of endurance ... flare-ups happening about 3 to 4 times per week, lasting an hour or so ... brought on by walking ... unable to walk more than a mile and a half, as well as [sit] for any length of time....”  It was noted, however, that the flare-ups “do not seem to interfere much with his normal activities, other than the inability and lack of endurance, to walk or run or do much weight bearing activities.”  The VA physical exam recorded “a pronounced limp and it appears to be painful,” mild edema, “very tender,” inability to rise on his toes due to pain, “good strength in the right lower extremity,” and “full range of motion of his ankle.”

The Board directed attention to its recommendations based on the above evidence.  The Board first considered if the left foot condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting as established above.  Members readily agreed that the functional limitations in evidence prevented the CI from meeting the requirements of his infantry MOS; and, accordingly a separate rating is recommended.  Members then turned to deliberation of the fairest coding and rating recommendation for the left foot condition.  The PEB’s 20% overall rating was the highest possible under the USAPDA pain policy.  It should be noted that the VA’s rating was premised on the C&P evidence, e.g., before the VA surgery and thus probative to severity at separation.  The VA’s rating was under code 5284 (foot injuries, other), conferring 20% for “moderately severe” disability.  Code 5284 offers a 10% rating for “moderate” severity and 30% for “severe.”  It should be noted that the VA conferred a permanent 30% rating after the post-separation surgery and recovery.  

Code 5283 (tarsal, or metatarsal bones, malunion or nonunion) is better aligned (analogously) with the clinical features; although, the rating criteria and parameters are the same as those given above for 5284.  Barring analogous 5003 coding, which would be inconsistent with VASRD §4.7 (higher of two evaluations) in this case, there are no other code options under VASRD §4.71a which are compatible or favorable in this case.  Agreeing on code 5299-5283, members deliberated whether the “moderate,” “moderately severe” or “severe” options most fairly characterized the severity of disability at separation.  Given the constant pain and physical limitations in evidence at separation; members agreed that severity exceeded that which would be fairly characterized as “moderate”; and, turned to deliberation of a 20% vs. 30% recommendation.  The evidence at separation and soon afterwards indicated that the condition was worsening and still somewhat unstable; this after already being assessed as “severe” by the NARSUM podiatrist.  The CI was experiencing constant pain and a persistent gait disturbance, with an inability to tolerate any extended weight bearing.  It is further noted that the escalation of symptoms which led to the surgery (and subsequent VA 30% rating) preceded separation.  Member consensus was therefore that the occupational limitations imposed were closer to “severe” disability (rated 30%) than they were to “moderately severe” disability (rated 20%).  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board’s consensus recommendation is a 30% rating for the left foot condition under code 5299-5283.

Right Ankle.  There is an STR entry from September 2001 documenting a right ankle injury resulting from parachute training (unclear if same incident as left foot injury).  There are follow-up entries documenting ongoing right ankle pain, two of them implying that pain was limited to exercising.  Podiatry entries for the left foot injury also note right ankle pain; although, they were not directed to severity, limitations, or specific treatment of the latter.  Imaging (CT) confirmed degenerative changes without other abnormality.  The NARSUM documented “still experiencing pain and swelling of the right ankle,” with pain rated 6/10 “three to four hours a day.”  The NARSUM did not differentiate limitations specifically attributable to the right ankle, and the only physical finding directed at the ankle was tenderness of the medial malleolus.  

Although the right ankle was submitted as a separate MEB diagnoses, neither the NARSUM nor the MEB’s DA Form 3947 make explicit reference to the whether the condition was judged to fail retention standards; and, the AR 40-501 reference (3.14.b) provided in the NARSUM is more applicable to just the foot condition; i.e., “Arthritis due to trauma, when surgical treatment fails or is contraindicated and there is functional impairment of the involved joints so as to preclude the satisfactory performance of duty.”  Neither the earlier temporary profiles nor the permanent profile at separation listed the right ankle, specifying only the left foot condition.  The commander’s performance statement (as quoted above for foot condition) was non-specific with regard to any diagnosis; but, appeared to be directed only at the left foot condition, and was not probative to any limitations specific to the right ankle condition.  The VA C&P examination soon after separation (above) did not document any right ankle complaint, physical finding, or diagnosis; and, the initial VA rating decision deferred the claim.  As detailed in the rating comparison chart footnote, it was denied 2 years post-separation; and, it was not service*connected until 8 years later, “secondary” to the left foot condition, with a 10% rating effective that date.  

The Board directed attention to its recommendation based on the above evidence.  The Board first considered if the right ankle condition, independent of the unfitting left condition, was itself reasonably justified as separately unfitting.  Members agreed that, based on the above evidence, there was a questionable basis for arguing that it was.  The well-established principle for fitness determinations is that they are performance-based.  The STR provides no evidence directed at specific performance limitations, other than an indication that it was interfering with exercising early in the course.  The lack of any evidence from the commander’s statement that the condition impeded performance, the fact that the condition was never profiled, the questionable judgment as to whether it failed retention standards, and the VA evidence very close to separation indicating that it was not a significant issue all raise substantial doubt for concluding that the right ankle condition was itself (or in combination with the left foot condition) unfitting.  After due deliberation, members agreed that the right ankle condition was not reasonably justified as separately unfitting; and, accordingly, it cannot be recommended for separate disability rating.

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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the left foot and right ankle conditions was operant in this case, and they were adjudicated independently of that policy by this Board.  In the matter of the combined left foot and right ankle conditions, the Board by majority vote recommends a rating of 30% for an unfitting left foot condition coded 5299-5283 IAW VASRD §4.71a; and, unanimously agrees that the right ankle condition was not separately unfitting and thereby not subject to disability rating.  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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Lisfranc Injury with Fracture, Surgical Residuals, Left Foot	5299-5283	30%	
Sprain Injury, Right Ankle	 Not Unfitting	
COMBINED 	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140610, 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 XXXXXXXXXXXXXXXXXX, AR20150018874 (PD201402889)

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 30% 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 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