RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	    CASE:  PD-2014-04228
BRANCH OF SERVICE:  AIR FORCE	separation date:  20070716

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Imagery Analyst, medically separated for “chronic right ankle instability and pain” and “chronic low back pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI believes he should have been rated higher.  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 - 20070508	VARD - 20080916  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Ankle Instability and Pain	5271-5003	10%	Right Ankle Strain	5271	10%	20070912	
Chronic Low Back Pain	5243	10%	Lumbosacral Strain with Bulging Disc	5237	20%	20070912	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Right Ankle Instability and Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent right ankle arthroscopic surgery with Brostrom repair in April 2005.  Radiographic (X-ray) studies of the right ankle in October 2005 showed a mild cortical irregularity along the margins of the distal fibula without evidence of an acute fracture or dislocation.  In March 2006 orthopedic evaluation revealed a cavovarus (abnormally high arch) foot, hind foot-based, with a tight Achilles tendon.    X-rays revealed a normal calcaneus (heel bone) of the right foot and right weight bearing X-rays revealed moderate pes cavus.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “ankle instability” for PEB adjudication.
  
The range of motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Ankle ROM
(Degrees)	Ortho                               ~16 Mos. Pre-Sep	PT                                ~10 Mos. Pre-Sep	VA C&P                   ~2 Mos. Post-Sep	
Dorsiflexion (20 Normal)	5 with knee bent 10 with knee straight	15-20	10	
Plantar Flexion (45)	N/A	30-35	45	
Comment	No instability	5/5 strength; no instability	No pain on ROM	
§4.71a Rating	10%	PEB 10%	VA 10%	

The MEB NARSUM dated 26 February 2007, 5 months prior to separation, noted that the CI had numerous missed duty days with no running since 1997 and had been non-deployable for the past 2 years and non-world-wide qualified for the past 6 months.  Continued physical therapy was recommended for his ankle.  An MRI in March 2007 demonstrated progressive tendinopathy that involved the peroneus longus tendon and a longitudinal split tear of the peroneus brevis tendon, a tear of the ATF ligament and pes cavus.  Despite an extended course of physical therapy and bracing, the CI continued to experience posterior lateral ankle pain and instability.

At the 4 October 2007 VA Compensation and Pension (C&P) examination, performed 3 months after separation, the CI reported constant sharp pain both in his right ankle and the bottom of both feet.  Pain was usually 6/10 (10 being the worst pain) at rest and 10/10 while weight bearing.  The CI had been treated with NSAIDs (nonsteroidal anti-inflammatory drugs), Tylenol with codeine (a combination of acetaminophen, a pain reliever, and codeine, a narcotic) and Vicodin (hydrocodone, a narcotic and APAP (acetaminophen)) with minimal improvement.  He also mentioned that he constantly twisted his right ankle and could not wear shoes.  On examination there was pain on pressure to the right ankle but no pain on the ROM.  There was pain in the arch of the foot, which was a high arch type.  The CI had muscle weakness to the right ankle, was unable to do a heel raise, and had an antalgic gait.  Tinel’s test (to determine nerve irritation) was positive to the medial right ankle just below the medial malleolus, otherwise the neurological examination was normal.  There were no skin abnormalities and the vasculature of the ankle and foot was normal.  The examiner’s diagnosis was chronic ankle pain most likely from a peroneus tendonitis and a previous tear in the ATF (anterior talo-fibular) ligament.  The examiner opined the condition may have been caused by the original ankle injury; surgery did not seem to improve the condition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, analogously coded 5271-5003 (ankle, limited motion-degenerative arthritis), citing right ankle instability and pain, status post modified Brostrom.  The VA also rated the right ankle condition 10%, coded 5271 (ankle, limited motion), citing moderate limited motion of the ankle.  The Board considered whether the limitation of motion was moderate or marked when considered under 5271, limitation of ankle motion.  Board members agreed the limitation of motion was no more than moderate, thereby supporting the 10% rating adjudicated by the PEB.  The Board considered alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to rating. The Board also considered whether ratings under the VASRD code for other foot injuries (5284) provided for a higher rating (§4.7); however, Board members agreed that the impairment did not more nearly approximate moderately severe to support a higher rating.  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 chronic right ankle instability and pain condition.  

Chronic Low Back Pain.  The STR and the MEB NARSUM indicated the CI developed back pain in January 1999 after a slip on the stairs.  An X-ray series of the lumbar spine in August 2004, was normal.  In December 2005 the CI had sharp lower back pain for which he received Vicodin and Flexeril (cyclobenzaprine, a muscle relaxer) at a civilian hospital.  In October 2006 X-rays of the lumbar spine demonstrated mild narrowing at the L5-S1 level and computed tomography (CT scan) revealed broad base disc bulges at L4-5 and L5-S1 with mild central canal stenosis present at L5-S1.  At the time of the Family Practice clinic appointment on 8 January 2007, the CI complained of lower back pain for 3 days for which he took Motrin (ibuprofen, an NSAID) for the pain that he noted was worse with coughing and sneezing and muscle spasm bilaterally.  He had no pain radiating to the legs and had no leg weakness or numbness.  Ordinarily, the pain hurt only when lifting or moving incorrectly.  On examination his lower back appeared normal and was not tender to palpation.  The thoracolumbar spine demonstrated a full ROM without pain during motion, although lumbosacral pain was noted at the extreme of forward flexion.  Straight leg raising was negative as were contralateral straight leg raising, femoral nerve traction testing, knee flexion testing and compression testing to determine nerve root impingements.  The CI’s gait was normal as was the neurological examination.  Home exercises and Flexeril were prescribed.  

At the time of the Family Practice clinic appoint on 5 February 2007, 5 days after an Emergency Room visit, examination revealed positive straight leg raising and contralateral straight leg raising, and no muscle spasms.  The lumbosacral spine exhibited no tenderness on palpation, normal motion (full ROM), and pain was not elicited by motion.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “lower back pain” for PEB adjudication.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.
 
Thoracolumbar ROM
(Degrees)	FP                      ~6 Mos. Pre-Sep	FP                      ~5 Mos. Pre-Sep	NARSUM          ~5 Mos. Pre-Sep	VA C&P                 ~2 Mos. Post-Sep	
Flexion (90 Normal)	
FROM
	       FROM	
FAROM
	45	
Extension (30)				10	
R Lat Flexion (30)				20	
L Lat Flexion (30)				30	
R Rotation (30)				30	
L Rotation (30)				30	
Combined (240)				165	
Comment	No painful motion	No painful motion with flexion or extension	Pain at extremes of forward and back bending	Painful motion	
§4.71a Rating	0%	0%	
PEB 10%
	VA 20%	

At the MEB NARSUM examination on 26 February 2007 (5 months prior to separation), the CI indicated his back pain continued, but as long as he avoided sit-ups and running, it did not cause him problems; however, he also noted his back pain was worse when he lifted more than 20 pounds.  Physical examination showed full ROM with complains of pain at the extremes of forward and backward bending, but no pain at the extremes of side bending or rotation.  Seated thigh raising was negative and supine straight leg raising (to determine nerve root irritation) was unreliable because of positive Waddell signs.  

At the 12 September 2007 VA Compensation and Pension (C&P) examination, performed 2 months after separation, the CI reported constant pain, stiffness and numbness and tingling in the bilateral lower extremities, but no bowel or bladder incontinence.  He had no incapacitating episodes and lost no days from work in the prior 12 months. The CI did not use any mechanical or ambulatory aids and was able to walk for 30 minutes without symptoms.  ROM measurements showed a forward flexion of 45 degrees (90 normal), and a combined ROM of 165 degrees (240 normal).  There was pain with flexion and extension; repetitive movements caused pain but with no additional functional limitations or loss of ROM.  Spine X-rays were normal and the examiner’s diagnosis was lumbar strain.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition 10%, coded 5243 (intervertebral disc syndrome), citing chronic low back pain, with disc bulges of L4-5 and L5-S1.  The VA rated the chronic low back pain condition 20% rating using code 5237 (lumbosacral strain), citing limitation of forward flexion.  Board members discussed the disparity between the ROM measurements prior to separation and the VA measurements 2 months after separation.  The measurements used by the PEB for rating were not recorded quantitatively, but were instead all listed under the rubric of full ROM or full active ROM.  The VA examination, on the other hand, not only listed all of the measurements, but was more proximate at approximately 2 months from the time of separation, albeit it after separation, than the NARSUM measurements, which were 5 months prior to separation; however, none of the examinations found spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  

The record was silent whether there was an accident, injury or worsening from the time of the NARSUM to the time of the VA examination; however, Board members did note the NARSUM measurements were consistent with other pre-separation examinations, which likewise did not have quantitative measurements.  Furthermore, there was no evidence of ankyloses to support a higher rating.  Nevertheless, the Board majority placed greater probative value on the VA C&P examination that appeared to be IAW VASRD §4.46 (accurate measurement).  At the VA C&P examination each ROM was noted in the record in compliance with Note (4) of the General Rating Formula for Diseases and Injuries of the Spine, which states:  “Round each range of motion measurement to the nearest five degrees.” Evidence was carefully reviewed IAW VASRD §4.6 with a specific focus on imaging findings of the broad base disc bulges at L4-5 and L5-S1 and the mild central canal stenosis at L5-S1.  Therefore, a higher rating at 20% was considered IAW VASRD §4.7 (higher of two evaluations) based VA ROM measurements.  However, in this case because of the disparity of the ROM measurements, in addition to VASRD §4.7, the Board majority discussed the pertinence and applicability of VASRD §4.3 (resolution of reasonable doubt).  The Board majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the VA examination.  

Although the PEB used code 5243 for the intervertebral disc syndrome, there were no episodes of incapacitation requiring physician-prescribed bed rest in the prior 12 months to warrant a higher rating nor was there evidence of an associated radiculopathy for a separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a significant motor or sensory component with functional impairment (such as weakness) that directly impacted fitness for duty.  Therefore, the Board concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the chronic low back pain condition, coded 5237.  

BOARD FINDINGS:  In the matter of the chronic right ankle instability and pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic low back pain condition, the Board majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  The Board majority 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	
Chronic Right Ankle Instability and Pain	 5271-5003	10%	
Chronic Low Back	5237	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141101, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

MINORITY OPINION:  

My dissent with the majority vote was based on the preponderance of the evidence in the STR related to the chronic low back pain condition, showing full ROM, the PEB appropriately rated the condition at 10%. 

All examinations prior to separation showed that the CI had full ROM.  Family Practice appointment on January 2007, 7 months prior to separation, examination showed normal gait and posture, no muscle spasm, lumbosacral spine motion was normal, and lumbosacral spine pain was not elicited by motion but only at extreme of forward flexion.  At the Family Practice appointment the following month, on 5 February 2005, 6 months prior to separation, the CI reported pain on a scale 2/10.  Again, the examination showed normal gait and posture, no muscle spasm, lumbosacral spine motion was normal; however, lumbosacral spine pain was not elicited by motion.  

At the MEB NARSUM examination on 26 February 2007, 5 months before separation, the examination showed full range of motion with complaints of pain at extremes measurements.  During examination the CI demonstrated positive Waddel signs.  There was no other documentation in the STR after the MEB NARSUM examination of the CI seeking treatment for his chronic low back pain condition before separation.  

Neither the commander’s statement nor the profile directly mentions chronic low back pain.  All profiles were temporary profiles and were related to his unfitting right ankle, with no mention of chronic low back pain.  The commander’s statement only mentions one medical condition; which the CI has multiple instances where he was place on physician-directed convalescent leave, for a week at a time.  These convalescent leave periods were the result of the CI ankle condition.  The STR showed no missed work related to his chronic low back pain.  

At the 12 September 2007 VA C&P examination, performed 2 months after separation, the examiner noted a forward flexion of 45 degree (90 normal) with pain at 45 degrees.  This examination was not performed with a goniometer and the examiner failed to record how far the CI could forward flex, only the pain was at 45 degrees.  In all ROM measurements where there was pain, the examiner failed to measure how far the CI could continue movement, does not meet an acceptable standard for a ratable measurement.  There is no mention that the CI was limited by pain.  

The majority based its recommendation by placing more probative value on the VA C&P examination.  Such a drastic reduction of ROM cannot be explained, there were no injuries, surgeries or other facts in evidence that might suggest how or why the ROMs could have worsened so dramatically.  I dispute the measurements and findings of the C&P examination, based on the fact that the examiner failed to accurately measure range of motion, only measuring where pain began and not measuring how much further the CI could move after pain started.  Furthermore, the minority voter does agree that all evidence prior to separation, adequately satisfies the 10% criteria of code 5243 based on full ROM and pain at the extremes of ROM measurements.  

Based on the preponderance of evidence before separation, the CI’s full ROM, the 20% criteria was not met under the recommended code, the minority voter finds insufficient reasonable doubt to sustain the majority recommendation. The totality of the evidence provides ample support for a conclusion that the PEB’s adjudication of the unfitting chronic low back pain condition was reasonable and fair.  

The Secretary is respectfully requested to consider the minority recommendation that there be no re-characterization of the CI’s service disability determination.
SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-04228.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at XXXXXXXXXXXXXXXXXX to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

Attachment: 
Record of Proceedings