RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03530
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060504

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Infantryman, medically separated for “bilateral ankle joints and bilateral first metatarsophalangeal joints, degenerative joint disease” and “right shoulder pain,” rated 20% and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI submitted a lengthy contention which included his unfitting conditions as well as hypertension and asthma.  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 - 20060324	VARD – 20070314	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Joint Disease, Bilateral Ankle Joints and Bilateral First Metatarsophalangeal Joints 	5003	20%	Degenerative Joint Disease Left Ankle	5019	10%	20061116	
			S/P Well Healed Fracture of Right Fibula with Retained Hardware with Degenerative Changes Right Ankle	5010-5261	10%	20061116	
			Gout with Degenerative Changes First Metatarsal Phalangeal Joint, Bilaterally	5017-5010	0%	20061116	
Right Shoulder Pain	5099-5003	0%	Right Shoulder Strain	5019	10%	20061116	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Degenerative Joint Disease, Bilateral Ankle Joints and Bilateral Metatarsophalangeal Joints.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral ankle and bilateral foot condition began when the CI noticed gout in his feet accompanied by idiopathic swelling in his ankles.  Gout in the feet (1st metatarsal joints at base of great toe) was a longstanding chronic condition (onset 1998-99), while ankle pain and swelling had onset in 2005 with an exacerbation of his gout.  The CI did not recall specific ankle trauma in 2005; however, he had prior fractures of each ankle with surgical repairs on the right.  Radiographic (X-ray) studies of the left ankle showed osteoarthritis with an old healed medial malleolus fracture.  X-ray of the right ankle showed degenerative changes with a medial malleolar spur and an old healed distal fibula fracture.  Foot X-rays showed changes consistent with osteoarthritis of the first metatarsal phalangeal (MTP) joint on the left and on the right.  Despite treatment, the bilateral ankle and bilateral MTP joints conditions could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “bilateral ankle pain” and “bilateral foot pain” for PEB adjudication.  

The MEB NARSUM examination on 14 October 2005 (7 months prior to separation), the CI reported complaints of increasing ankle pain over the past year with episodes of painful swelling in his ankles.  On awakening he could not walk without taking Ibuprofen and soaking in warm or hot water.  Physical examination showed bilateral ankle tenderness to palpation and “tender with inversion and eversion.”  

Formal physical therapy range of motion (ROM) measurements dated 14 December 2005 (5 months prior to separation), recorded bilateral dorsiflexion to 5 degrees (normal 20) and plantar flexion to 35 degrees (normal 45) with no decrease on repetition.  All active ROM measurements were less than passive ROM measurements.  

At the 16 November 2006 VA Compensation and Pension (C&P) examination, performed 6 months after separation, the CI reported gout since 1999 with pain in his bilateral fist MTP joints and had been treated with multiple medication including episodic systemic steroids.  He reported prior fractures of his right fibula in 1987 and 1998 (with surgical repair), and constant pain in his lower legs.  His ankles would swell periodically and he had constant ankle pain without instability or locking.  Physical examination showed a slow and guarded gait with the CI able to walk on heels and was slightly unsteady walking on toes.  The ankles had no crepitus and no guarding.  There was tenderness to palpation with -5/5 strength (normal 5/5; minimal weakness) noted on both ankles.  Ankle ROM was right ankle dorsiflexion 10 degrees, plantar flexion was normal; left ankle dorsiflexion and plantar flexion were normal, with “fatigued with pain” on motion on both ankles.  Bilateral MTP joints were tender, with no redness, swelling, heat or angulation.  X-rays showed left ankle degenerative changes with an old fracture of the medial malleolus, and the right ankle showed an old healed fracture of the fibula.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the right ankle, left ankle, and the left and right metatarsophalangeal joint conditions as a single unfitting condition coded 5003 (arthritis, degenerative) and rated 20%.  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.  The Board also noted that “bundling,” the combining of two or more major joints or minor joint groups, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  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 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 VA assigned a 10% rating using the 5019 code (bursitis) for the left ankle condition; a 10% rating using the analogous 5010-5261 code (arthritis due to trauma - leg, limitation of extension) for the right ankle condition; and a 0% rating using the analogous 5017-5010 code (gout - arthritis due to trauma) for bilateral first MJP joint conditions; based on the VA C&P examination 6 months after separation, citing painful motion for each ankle and a non-compensable foot examination without evidence of a moderate foot injury or severe hallux valgus equivalent to loss of the great toe.  

The Board considered that each ankle was reasonably unfitting, and there was some question if the longstanding gout with episodic exacerbations was separately unfitting.  However, regardless of separate unfitting determinations for the bundled conditions, there was no pathway to rating either the combined conditions (analogous to 5017-5002 active gout) or separate ankle and MTP joint conditions at higher than the 20% adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the degenerative joint disease, bilateral ankle joints and bilateral metatarsophalangeal joints condition.  

Right Shoulder Pain.  The CI was right-handed.  According to the STR and the MEB NARSUM, the CI’s right shoulder condition began in the fall of 2003 following trauma.  He experienced severe pain with lifting his arm above chest level or 90 degrees along with signs and symptoms of impingement syndrome.  Diagnostic imaging showed supraspinatus tendinopathy and a small amount of fluid in the bursa.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “right shoulder pain secondary to impingement syndrome” for PEB adjudication.  

The MEB NARSUM examination on 14 October 2005 (7 months prior to separation) noted continued complaints of right shoulder pain.  Physical examination reported as accomplished by an orthopedic surgeon (13 months prior to separation) showed significant for symptoms of signs of right shoulder impingement syndrome with forward flexion to about 110 degrees (normal 180) and abduction to 110 degrees (normal 180).  There were positive Neer and positive Hawkins impingement signs.  The NARSUM provider’s examination indicated positive pain with abduction greater than 90 degrees and forward flexion greater than 90 degrees with a positive Neer and Hawkins impingement sign.  Strength and sensation were intact.  

Formal physical therapy ROM measurements dated 14 December 2005 (5 months prior to separation) noted painful motion with forward flexion to 110 degrees and abduction to 90 degrees (normal 180).  Three measurements were provided and indicated no change in ROM.  

At the 16 November 2006 VA C&P examination, performed 6 months after separation, the CI reported pain with lifting his arms up and pain with almost any use of his shoulder.  He denied dislocations, swelling, redness or heat.  Pain interfered with sleep and was treated with Motrin.  Physical examination showed guarding, pain and crepitus with movement with mild tenderness to palpation over the anterior shoulder joint.  Right shoulder ROM was forward flexion 0-100 degrees active, and fatigued with pain starting at 100 degrees; abduction was to 90 degrees active, and fatigued with pain starting at 85 degrees.  Shoulder X-rays were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition 0%, analogous coded 5003 (arthritis, degenerative), citing decreased ROM with pain and rated for pain under the U S Army Physical Disability Agency Pain Policy, as slight and intermittent.  The VA rated the right shoulder pain condition 10%, coded 5019 (bursitis) based on the VA C&P examination 6 months after separation, citing painful motion.  

The VASRD §4.71a threshold for rating for ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side).  The 20% rating for the dominant arm requires motion limited to “at shoulder level” and the physical therapy and VA C&P examinations both reflected this degree of limitation to abduction.  There was no fibrous union or nonunion of the humerus to justify a higher rating under the 5202 code (humerus, other impairment of), and no higher rating available under the 5203 code (clavicle or scapula, impairment of).  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 right shoulder condition, coded 5021.  

BOARD FINDINGS:  In the matter of the degenerative joint disease bilateral ankle joints and bilateral first metatarsophalangeal joints condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right shoulder condition, the Board unanimously recommends a disability rating of 20%, coded 5201 IAW VASRD §4.71a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Joint Disease, Bilateral Ankle Joints and Bilateral First Metatarsophalangeal Joints 	5003	20%	
Right Shoulder Pain	5201	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140723, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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, AR20160013320 (PD201403530)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% 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 40% 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