RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03104
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071227

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Motor Transport Operator) medically separated for “chronic bilateral ankle pain,” rated at 10%.  

CI CONTENTION:  The CI requested that the Board review all conditions.  The 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 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 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 20071012	VA* - (~1 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Pain	5099-5003	10%	Right Ankle Strain with Acquired Deformity	5299-5273	20%	20080130	
			Left Ankle Strain with Acquired Deformity	5299-5273	10%	20080130	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20080130	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 10	
RATING:  10%	RATING: 90%	
*Derived from VA Rating Decision (VARD) dated 20080821 (most proximate to date of separation [DOS])  

ANALYSIS SUMMARY: 

Bilateral Ankle Pain.  This CI has had ankle problems since 1998.  In July 2006, magnetic resonance imaging (MRI) of the right ankle showed that both peroneal tendons were intact.  The calcaneofibular ligament (CFL) and the posterior talofibular ligament (TFL) were thickened.  The anterior TFL was attenuated.  These findings suggested chronic injury.  In January 2007, the CI was seen by Orthopedics.  He reported that his right foot had been inverted for 4 years.  On physical examination (PE), the ankles were normal appearing.  There was no swelling, redness, or tenderness to palpation (TTP).  The right ankle was able to be manually reduced to a neutral position.  Ankle motion was normal.  There was full passive range-of-motion (ROM).  Anterior drawer sign was negative, and ankle strength was intact.  The orthopedist’s diagnostic assessment was: “Acquired deformity of ankle.”  A cast was placed on the right ankle, in an attempt to correct the problem.  Over the years, many other therapeutic modalities were also tried, to help resolve the symptoms.

However, in spite of all treatment efforts, the CI’s ankle problems persisted.  Eventually, an MEB was initiated.  The MEB physical examination (PE) was in September 2007.  The CI reported pain in the lateral aspect of both legs.  He said he was unable to run, jump, ruck march, or carry field gear.  On PE of the lower extremities, both legs were tender posteriorly and medially.  The skin was warm and dry.  Ankle ROM was measured with a goniometer, and is summarized in the chart below.  In the MEB narrative summary (NARSUM), the diagnosis for the ankles was: “Chronic bilateral ankle pain, with acquired deformity of the right ankle.”  

The CI was medically separated from service on 27 December 2007.  One month later, in January 2008, he had a VA Compensation and Pension (C&P) exam.  He reported that his ankle pain was constant.  He also reported swelling and popping, and he walked with a limp.  On PE of the ankles, there was tenderness to palpation (TTP), but no edema (swelling).  Ankle ROM was normal, with no pain.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Ankle ROM
(Degrees)	NARSUM ~3 mos. Pre-Sep
(20070917)	VA C&P ~1 mo. Post-Sep
(20080130)	
	Left	Right	Left	Right	
Dorsiflexion (20 Normal)	15	5	20	20	
Plantar Flexion (45)	20	15	45	45	
Comment	Painful motion	Painful motion	No pain	No pain	

The Board carefully reviewed all information available, and directed attention to its rating recommendation based on the evidence.  The Army PEB combined the two ankle problems into a single unfitting condition.  The condition was coded 5099-5003 and rated at 10%.  The August 2008 VA Rating Decision (VARD) unbundled the two ankles, and assigned a separate disability rating to each ankle joint.  The Board evaluated whether or not it was appropriate for the two ankles to be “bundled” together.  The Board must determine if the PEB’s approach of combining the conditions under a single rating was reasonably justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD).  If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each ‘unbundled’ condition was separately unfitting.  After due deliberation, the Board determined (by majority decision) that the evidence supports a conclusion that each of the ankle conditions, separately, would have rendered the CI unable to perform his required military duties.  Accordingly, the Board recommends a separate Service disability rating for each ankle.  It is not reasonably justified for the two ankles to be “bundled” together, and treated as a single unfitting condition.  

After consideration of the ankle examinations noted above, the Board determined that the January 2008 C&P exam had greater probative value since it was conducted just one month after separation.  At that exam, ankle ROM was normal.  Using data from that January 2008 C&P exam, the ankle condition was essentially non-compensable based solely on the VASRD §4.71a codes for loss of ankle motion (5270 through 5272).  However; IAW VASRD §4.40, §4.45, and §4.59, a 10% rating is warranted when there is satisfactory evidence of functional limitation due to pain.  The Board tried to find a path to a higher rating, using other codes which could be applied to the ankle condition.  The other VASRD codes that were considered did not result in a higher rating, since the STR did not show sufficient evidence of a seriously disabling bone or joint abnormality which would justify a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% disability rating for the chronic right ankle condition.  In like manner, the Board recommends a 10% disability rating for the chronic left ankle condition.  

Obstructive Sleep Apnea (OSA).  In July 2006, this CI underwent nocturnal polysomnography (NPSG), and was diagnosed with OSA.  He was treated with continuous positive airway pressure (CPAP) therapy.  The OSA condition was adjudicated by the PEB as: “Not unfitting, not rated.” The Board’s main charge with respect to this condition is to assess the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering a fitness determination is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The OSA condition was thoroughly reviewed by the action officer and considered by the Board.  The Board determined that the OSA condition was not specifically profiled, nor was it judged to fail retention standards.  There was insufficient evidence in the record that the OSA condition significantly interfered with satisfactory performance of military duties.  After due deliberation, and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB fitness determination for the OSA condition.  Therefore, 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.  As noted above, PEB reliance on the USAPDA pain policy was operant in this case.  The unfitting ankle condition was adjudicated independently of that policy by this Board.  

In the matter of the chronic bilateral ankle pain, and IAW VASRD §4.40, §4.45, and §4.59, the Board recommends by majority decision, a 10% disability rating for the right ankle, and a 10% disability rating for the left ankle.  The single dissenting voter did not elect to submit a minority opinion.  In the matter of the OSA condition, 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.  

The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic right ankle pain	5299-5271	10%	
Chronic left ankle pain	5299-5271	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140612, 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, AR20160004032 (PD201403104)

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