RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03977
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040531

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Radio Operator Maintainer) medically separated for ankle, hip and knee conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L4 profile and referred for a Medical Evaluation Board (MEB).  Peroneal tenosynovitis, bilateral ankles, healing stress fractures, right femoral neck, and bilateral knee retropatellar pain syndrome (RPPS) were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded mild gastritis for PEB adjudication.  The Informal PEB adjudicated bilateral ankle pain, healing stress fracture right hip, and bilateral RPPS as unfitting, rated 0%, 0%, and 0% respectively.  The remaining gastritis condition was determined to be not unfitting.  The CI made no 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 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 20040419	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Pain	5024	0%	Right-Ankle Peroneal Tenosynovitis…	5024-5271	10%	20040714	
			Left-Ankle Peroneal Tenosynovitis…	5024-5271	10%	20040714	
Right Hip	5099-5022	0%	Status-Post Right Hip Fracture	5252	10%	20040714	
Bilateral RPPS	5099-5003	0%	Right RPPS	5024	10%	20040714	
			Left RPPS	5024	10%	20040714	
Mild Gastritis	Not Unfitting	Gastritis	5271-7307	0%	20040714	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5	
COMBINED RATING:  0%	COMBINED RATING: 80%	
*Derived from VA Rating Decision (VARD) dated 20040809 (most proximate to date of separation [DOS])

Analysis Summary:  The PEB combined the right and left ankle conditions as a single unfitting condition.  This 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, or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints may be permissible under the VASRD 5003 rating requirements.  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 disability evaluation system (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 bilateral ankle and bilateral knee conditions are presented below, with attendant recommendations regarding separate unfitness, and separate rating of each joint as indicated.

Bilateral Ankle Condition.  The MEB narrative summary (NARSUM) notes the CI had a 3- to 4-year history of constant bilateral ankle pain that developed gradually and was aggravated by weight-bearing activities.  At a podiatry consult 27 October 2003, the CI reported increasing right greater than left ankle pain that was not improved by a soft shoe profile.  There was mild tenderness to palpation (TTP) of the ankle, especially the lateral ankle, without weakness or loss of sensation.  The podiatrist’s assessment was improving plantar fasciitis, and peroneal tendonitis or a possible tear bilaterally.  The CI was given a removable boot for the left ankle and crutches for non-weight bearing on the right ankle.  At a podiatry follow-up visit 31 October 2003, 7 months before separation, the foot exam noted bilateral arch collapse, TTP and strength were normal, but painful range-of-motion (ROM) was noted.  Ankle X-rays were normal and a bone scan noted increased uptake consistent with possible stress reactions bilaterally.  Magnetic resonance imaging (MRI) of the ankles 23 November 2003 showed fluid around the peroneal tendons bilaterally and possible ligament sprains on the left.  At a follow-up visit 2 December 2003, the podiatrist diagnosed bilateral peroneal tenosynovitis and an MEB was recommended.  At the final podiatry evaluation on record 8 December 2003, the CI reported ankle pain that radiated up the lateral side of the leg and minimal improvement with treatment.

The commander’s statement 26 January 2004 noted that “acute tendonitis” impaired the CI’s duty performance.  The permanent profile 19 March 2004 listed chronic bilateral foot pain and noted use of a removable ankle boot and crutches as needed.

At the MEB NARSUM exam 10 December 2003, 6 months before separation, the CI reported bilateral ankle pain.  The examiner documented bilateral ankle pain, flexible flatfoot deformity with TTP over the anterior and lateral ankle, and pain with ROM along the peroneal tendons.  There was painful dorsiflexion and plantar flexion, without crepitus of the ankles or feet.  There was normal subtalar joint motion and dorsiflexion was 10 degrees (normal 20).  There was no swelling, and strength of the foot and ankle were normal.  The examiner noted the CI was using crutches as needed.

At the VA Compensation and Pension (C&P) exam 14 July 2004, 2 months after separation, the CI reported daily bilateral ankle and foot pain, improved by medication.  He reported using a removable ankle boot for the right ankle.  He noted he did not use shoe inserts and the bilateral foot pain was worse in the mornings and improved throughout the day.  The exam noted the CI was wearing a right ankle boot, which was removed, and the CI had a “slight antalgic” gait.  The exam was reported for the bilateral ankles.  There was lateral swelling with lateral and anterior TTP.  Ankle ROM was dorsiflexion 15 degrees and plantar flexion 35 degrees (normal 45).  The feet were normal in appearance with normal Achilles tendon alignment and there was no pain on manipulation of the feet.

The Board first considered if both the right and left ankle conditions, having been de-coupled from the combined PEB adjudication, remained reasonably considered unfitting as established above.  The permanent profile listed the chronic bilateral foot condition and limitations referable to both ankles and feet were specified.  The commander’s statement specifically noted the tendonitis condition impaired the CI’s duty performance, which was the podiatric diagnosis of both ankles.  The Board readily concluded that the evidence supports that the both the ankle conditions were reasonably considered separately unfitting at separation and therefore eligible for individual Service rating.  Based on exams in the record, the coding and rating features were essentially identical for both ankles, therefore the Board considered its rating recommendation for the left and right ankle conditions together at the time of separation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral ankle condition 0%, coded 5024 (tenosynovitis).  The VA rated the right and left ankles 10% each, both coded 5024-5271 (limited ankle motion with tenosynovitis).  The Board agreed that the evidence in record supports 10% ratings for each ankle based upon either limited motion with tenosynovitis coded as 5024, or for `moderate’ limited ankle motion, coded as 5271.  The Board reviewed to see if a higher evaluation for either ankle or both ankles could be supported with any other applicable coding approach.  There is no higher rating available for the right and left ankles coded as 5024 than 20% combined, whether rated individually or as a bilateral condition.  The Board next reviewed the rating criteria of 5271 which are subjective, with 10% rating for `moderate’ limited ankle motion and 20% for `marked’.  The ankle ROM was noted as painful at both the MEB and C&P exams and, at the C&P exam, the most proximate exam to the date of separation, the ankle ROM was near normal and equal bilaterally.  The Board agreed that the limited ROM of both ankles was best characterized as `moderate’ and not `marked’.  Additionally, there was no evidence of deformity, malunion, or ankylosis of either ankle to support a higher rating.  The Board also considered if alternatively coding the condition with VASRD foot codes (since the peroneal tendons traverse the ankle and insert on the foot) would result in a higher rating for either or both ankles.  The CI was diagnosed with flatfoot deformity, but there was no evidence of the findings of severe flatfoot deformity required for 20% rating of either foot coded as 5276, plus the CI did not use inserts and there was no pain on manipulation of the feet noted at the C&P exam to support even the 10% rating for the bilateral condition.  The Board finally reviewed coding with 5284 (other foot injury), which also has the subjective criteria of a 10% rating for `moderate’ injury and 20% for `moderately severe’.  As noted there was bilateral flatfoot deformity without other evidence of deformity or mal-alignment of the foot, near normal ROM with painful motion and MRI findings of tendonitis without tendon tears.  After discussion, Board consensus was that these findings were also best characterized as `moderate’ and not as a `moderately severe’ foot injury of either foot.  The Board thus determined that the evidence supports a 10% rating for each of the right and left ankle conditions and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating for the bilateral ankle condition as follows: an unfitting right ankle condition, rated 10%, and an unfitting left ankle condition, rated 10%, both coded 5271.

Right Hip Condition.  The MEB NARSUM noted the review of systems (ROS) was significant for right hip pain.  Notes in the STR indicated that a bone scan (BS) 8 April 2003, 13 months before separation, showed a stress fracture of the right hip and a repeat bone scan 5 December 2003, 5 months before separation, showed improvement of the stress fracture.

At the MEB NARSUM exam, 6 months before separation, the CI reported chronic right hip pain.  The MEB orthopedic consultation 4 February 2004, 3 months before separation, noted chronic right hip pain aggravated by stairs, running, or other activities that require hip flexion.  The exam noted full hip ROM, with painful motion and pain with weight bearing.  Right hip X-rays were normal, but the examiner noted the bone scan showed a healing stress fracture.  The MEB orthopedic consultant indicated the CI failed to meet retention criteria.

At the VA C&P exam, 2 months after separation, the CI reported a history of a hip fracture with conservative treatment.  He reported daily hip pain.  The hip ROM was reported as “he was unable to cross the right ankle over the left knee”.  External rotation was 15 degrees and abduction was 30 degrees with pain, and flexion was 95 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the hip condition 0%, coded 5099-5022 (analogous to periostitis).  The VA rated the hip condition 10%, coded 5252 (limited thigh flexion).  The Board agreed that the evidence supports a 10% rating of the hip condition coded either as 5022 for limited motion; 5252 (limited thigh flexion) for painful limited thigh flexion IAW VASRD §4.59 (painful motion); or, 5253 (thigh impairment) for “limitation of adduction, cannot cross legs”.  The Board reviewed to see if the evidence supports a higher rating with any applicable code, but there was no evidence of limited thigh flexion or extension sufficient to meet rating criteria based on ROM alone and there was no evidence of ankylosis or impairment of the femur, tibia, or fibula.  The Board thus determined that the evidence supports a 10% rating for the hip condition and no higher, and chose to code as 5299-5252.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the hip condition.

Bilateral Knee Condition.  The NARSUM noted the ROS was significant for right knee pain.  Remote notes in the STR indicated the CI was treated at separate times for left and right RPPS.  The left RPPS resolved and the CI was cleared for airborne training. In April 2001, the CI reported right knee injury during airborne training and reported that running aggravated the knee and it “comes out of place a lot”.  The CI was given anti-inflammatory medication and placed on a 10-day profile.  At a primary care visit, 21 October 2003, 7 months before separation, the CI reported bilateral knee pain and numbness of both knees with running that felt like it would “give”, greater on the right than left.  The exam noted no swelling or instability, but there was patellar grinding and crepitus bilaterally and pain with varus and valgus stress of both knees, right greater then left.  The CI was referred to an orthopedic specialist and a bilateral knee MRI 25 November 2003 was normal.  

The commander’s statement 26 January 2004 did not specifically mention a condition with either or both knees as impairing the CI’s duty performance.  The permanent profile did not list any knee condition.  

At the MEB NARSUM exam, 6 months before separation, the CI reported knee pain.  The MEB physical exam did not address the knees.  The MEB orthopedic consultation, 3 months before separation, noted a 3-year history of bilateral knee pain, aggravated by activity.  The CI reported generalized knee pain with recurrent swelling and “feelings of instability”, but denied locking or catching symptoms.  He reported daily use of pain medication.  The exam noted full ROM of the right knee, but motion of the right hip caused knee pain.  There was also TTP of the medial and lateral joint lines and inferior patella area of both knees with positive patellar grind tests.  There was no evidence of instability or meniscal injury.  Bilateral knee X-rays noted mild joint narrowing.  The MEB orthopedic consultant diagnosed bilateral RPPS and indicated the CI failed to meet retention criteria.

At the VA C&P exam, 2 months after separation, the CI reported bilateral knee pain after sitting for prolonged periods.  He reported occasional knee swelling, but no instability, and he did not require any type of assistive device for his knees.  The exam noted the knees were normal in appearance.  Left and right knee ROM was extension-flexion 0-125 degrees (normal 0-140) and right knee flexion aggravated hip pain.  There was no TTP, swelling, effusion or instability of the knees.

The Board first considered if both the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The PEB adjudicated the bilateral RPPS condition as unfitting; however, neither the permanent profile nor the commander’s statement noted a knee condition.  Therefore, these documents do not provide evidence regarding the fitness of the individual knee conditions.  The CI reported bilateral knee pain at treatment visits in the STR.  At the MEB NARSUM and MEB orthopedic evaluations right knee pain was specifically noted.  The MEB ortho evaluation only addressed ROM of the right knee but noted both knees had TTP with patellar grinding.  The examiner diagnosed RPPS of both knees and indicated that the CI failed retention standards without discriminating between the knees.  In this case, based on the evidence from the STR and the MEB orthopedic consult, the Board agreed that both the right and left knees were reasonably justified as separately unfitting; and therefore, eligible for individual service rating.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated bilateral RPPS 0%, coded 5099-5003 (analogous to degenerative arthritis).  The VA rated the right and left RPPS conditions 10% each, both coded 5024 (tenosynovitis).  The Board first noted that according to the 5003 rating criteria, the two knee conditions met a 10% rating for X-ray evidence of degenerative arthritis in two or more joints, but did not meet the 20% rating, which requires occasional incapacitating episodes due to the knee conditions.  The Board next reviewed to see if the evidence supports a 10% rating for each knee with any applicable coding approach.  Neither knee met a 10% rating based on ROM criteria alone.  There was no evidence of painful knee ROM of either knee at the MEB orthopedic evaluation or C&P exam, though flexion of the right knee caused hip pain and hip ROM caused knee pain.  The CI reported pain of both knees in the STR, but at the MEB exam and the MEB orthopedic consult, only right knee pain was referenced.  Therefore, after deliberation, the Board consensus was that the evidence supports that the right knee could be provided a minimum 10% rating based on functional loss considerations due to pain with use, but not the left.   The Board determined the left knee achieved a 0% rating IAW VASRD §4.31 (zero percent evaluations), which states “in every instance where the schedule does not provide a zero percent evaluation…, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.”  Therefore, this recommendation results in a 10% combined rating for the knees and provides no ratings benefit versus coding as 5003.  Additionally, there was no evidence of femur, tibia, or fibula impairment, instability, meniscal injury, or ankylosis of either knee to support higher ratings.  Therefore, the Board concluded that the evidence supports a combined 10% rating for the bilateral knee condition, whether rated as a bilateral condition or rated individually (right knee 10% and left knee 0%, coded 5299-5260), and no higher, and chose to rate bilateral knees with code 5003.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a finding of unfitting right and left knees rated 10% as a bilateral joint condition coded 5003.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the gastritis condition 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.

Gastritis Condition.  The MEB DD Form 2808, Report of Medical Examination, dated 12 January 2004, noted the CI had pain over the stomach with palpation and referred the CI to a gastrointestinal (GI) specialist.  An upper GI endoscopy was subsequently performed and noted “mild gastritis” (inflammation) of the stomach.  A follow-up GI visit noted that the endoscopy showed no significant inflammation and the GI symptoms were most likely related to anti-inflammatory medications and/or aspirin use.  There was no evidence of an ulcer and the specialist indicated the CI met retention standards for this condition.

The gastritis condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance-based evidence from the record that the gastritis condition significantly interfered with satisfactory duty performance.  After due deliberation, and 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 gastritis 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.  In the matter of the bilateral ankle condition, the Board unanimously recommends a disability rating as follows: an unfitting right ankle condition, rated 10% and an unfitting left ankle condition, rated 10%, both coded 5271 IAW VASRD §4.71a.  In the matter of the right hip condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5252 IAW VASRD §4.71a.  In the matter of the bilateral knee condition, the Board unanimously recommends a disability rating as follows:  an unfitting right knee condition and an unfitting left knee condition, rated 10% as a bilateral joint condition, coded 5003 IAW VASRD §4.71a.  In the matter of the contended gastritis 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.

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	
Right Ankle Pain Condition	5271	10%	
Left Ankle Pain Condition	5271	10%	
Right Hip Condition	5299-5252	10%	
Bilateral RPPS	5003	10%	
COMBINED (w/BLF)	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140910, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160004439 (PD201403977)

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 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