RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03731
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080326

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Basic Trainee, medically separated for “bilateral ankle pain,” with a disability rating of 10%.

CI CONTENTION:  “Please consider all conditions.”  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 on 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 - 20080317	VARD - 20081114	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Pain	5099-5003	10%	Residuals, Right Ankle Sprain	5271	0%	20080530	
			Residuals, Left Ankle Sprain	5271	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Right Ankle Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM) the CI’s right ankle condition began in November 2007 (4 months prior to separation) after an inversion injury during the first week of basic training.  Diagnostic imaging (X-rays) in November and December 2007 showed no evidence of fracture, dislocation, or bony lesions.  Further imaging (bone scan) in December 2007, showed no evidence of stress fractures.  At a physical therapy clinic visit on 12 December 2007, the examiner documented ambulation with bilateral crutches, and a moderately antalgic gait without crutches.  There was lateral ankle tenderness with a range of motion (ROM) that was “within normal limits” and painful; and there was no evidence of ligamentous laxity or instability.  A podiatrist had diagnosed “peroneal tendonitis” earlier in the day.  At an emergency room visit 2 weeks later, the CI reported bilateral ankle pain.  On examination there was full ROM with pain and normal strength and sensation.  Diagnostic imaging (X-ray) in December 2007 and January 2008 showed no bone or joint abnormality.  Despite duty limitations, medications, and physical therapy, the ankle condition could not be adequately rehabilitated to meet the physical requirements in order to complete training and the CI was referred for an MEB.  The MEB forwarded “bilateral ankle pain and instability” for PEB adjudication.  At the MEB NARSUM examination on 7 January 2008 (3 months prior to separation), the CI reported ankle pain and instability that prevented her from running, jumping, marching, performing sit-ups or push-ups.  Physical examination showed ambulation with crutches and tenderness, lateral swelling and painful motion.  Dorsiflexion was 10 degrees (normal 20) and plantar flexion was to 40 degrees (normal 40).  

At the 30 May 2008 VA Compensation and Pension (C&P) evaluation, performed 2 months after separation, the CI reported constant pain, particularly when walking on uneven ground.  Physical examination showed a limping gait on the right with no effusion.  Dorsiflexion and plantar flexion were normal and without pain.  There was tenderness along the lateral ankle without crepitus or instability.  The examiner added that there were no additional limitations following repetitive use “other than increased pain.”  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB combined the right ankle and left ankle conditions as a single unfitting condition coded analogously to 5099-5003 and rated 10%.  The Board noted that “bundling,” of two or more major joints, 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 evidence for the right ankle and left ankle conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate ratings if indicated.  

As noted above, the PEB bundled the right ankle with the left ankle condition and applied a single 10% rating (coded 5099-5003), citing painful motion and reduced functionality.  The VA rated the residuals, right ankle sprain 0% (coded 5271, limited motion of the ankle), citing no evidence of moderate limitation of motion to warrant the next higher evaluation.  The Board first considered if the right ankle condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The “bilateral ankles” were profiled, implicated in the NARSUM, forwarded by the MEB, and adjudicated by the PEB as unfitting.  The commander’s statement was not in evidence.  The Board members concluded that the preponderance of evidence showed that the right ankle condition would reasonably have caused the CI to be referred into the Disability Evaluation System (DES).  

The Board carefully reviewed the entire record in evidence.  Several pre-separation examinations documented painful motion, intermittent swelling and tenderness, with normal or near normal ROM in support of a 10% rating.  The MEB examinations documented near normal ROM measurements and supported a rating of 10% for painful motion.  The VA examinations did not explicitly state the use of a goniometer, did not provide all measurements, however alluded to pain following “repetitive use,” and supported a 10% rating.  The Board deliberated the MEB and VA evidence and considered the totality of the record, and agreed that both examinations were of equal quality with regard to rating the right ankle at separation.  All pre-separation examinations in evidence documented painful motion.  None of the ROM measurements in evidence were considered to approach the “moderate” or “marked” degree necessary for consideration under 5271 (ankle, limited motion of), a higher than 10% rating was not justified.  After due deliberation, Board members agreed that the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform her military duties, and accordingly the Board recommended a separate disability rating of 10% for the right ankle condition.  

Left Ankle Pain.  According to service treatment records and the MEB NARSUM the CI’s left ankle condition began December 2007 (3 months prior to separation) after an injury during basic training.  At a podiatry visit, the examiner documented tenderness and swelling, with painful motion.  Diagnostic imaging (X-rays and bone scan) showed no evidence of fracture, dislocation, or bony lesions.  At a physical therapy clinic visit (3 days later), the examiner documented ambulation with bilateral crutches, and a moderately antalgic gait without crutches.  There was lateral ankle tenderness with a ROM that was “within normal limits” and painful.  There was no evidence of ligamentous laxity or instability.  A podiatrist had diagnosed “peroneal tendonitis” earlier in the day.  At an emergency room visit in December (2 weeks later), the examiner documented full ROM with pain, and normal strength and sensation; and diagnosed “chronic bilateral foot and ankle pain.”  

At the time of the podiatry clinic appointment on 7 January 2008, the CI reported pain, swelling, limping, and inability to walk.  On examination there was swelling, erythema, warmth, and tenderness.  Dorsiflexion and plantar flexion were described as “abnormal” with pain on motion and evidence of ligamentous instability and laxity.  Duty limitations were documented on the Army profile referenced earlier and not specific to the left ankle.  Despite duty limitations, medications, and physical therapy, the bilateral ankle condition could not be adequately rehabilitated to meet the physical requirements necessary to complete training and the CI was referred for an MEB.  At the MEB NARSUM examination on 7 January 2008 (3 months prior to separation), the CI reported ankle pain and instability that prevented her from running, jumping, marching, performing sit-ups or push-ups.  Physical examination showed ambulation with crutches and tenderness with painful motion.  Dorsiflexion was 10 degrees (normal 20) and plantar flexion was to 20 degrees (normal 40).  

At the 30 May 2008 VA C&P evaluation, performed 2 months after separation, the CI reported bilateral ankle sprains with constant pain particularly when walking on uneven ground.  Physical examination showed no effusion.  Dorsiflexion and plantar flexion were normal and without pain.  There was tenderness along the lateral ankle without crepitus or instability.  The examiner added that there were no additional limitations following repetitive use “other than increased pain.”  

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the left ankle with the right ankle condition and applied a single 10% rating (coded 5099-5003), citing painful reduced functionality.  The VA rated the residuals, left ankle sprain 0% (coded 5271, limited motion of the ankle), citing no evidence of moderate limitation of motion to warrant the next higher evaluation.

The Board first considered if the left ankle condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The “bilateral ankles” were profiled, implicated in the NARSUM, forwarded by the MEB, and adjudicated by the PEB as unfitting.  The Commander’s statement was not in evidence.  The Board members concluded that the preponderance of evidence showed that the left ankle condition would reasonably have caused the CI to be referred into the DES.  The Board next considered the rating.  The Board agreed that the MEB ROM examination proximate to separation was consistent with a moderate limitation of motion for a 10% rating under this code.  The evidence would also support a 10% rating for painful motion IAW VASRD 4.59.  A higher rating of 20% was not indicated in the absence of a marked limitation of ROM.  After due deliberation, Board members agreed that the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform her military duties, and accordingly the Board recommended a separate disability rating of 10% for the left ankle condition.  

BOARD FINDINGS:  In the matter of the bilateral ankle condition, the Board unanimously recommends that each joint be separately adjudicated as follows: an unfitting right ankle condition coded 5271 and rated 10%, and an unfitting left ankle condition, coded 5271 and rated 10%, both 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, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Right Ankle Pain	5024	10%	
Left Ankle Pain	5024	10%	
COMBINED w/ BLF	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140807, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX AR20160011771 (PD201403731)

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