RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04314
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20011013

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Track Vehicle Mechanic) medically separated for bilateral ankle and left shoulder conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent U2L3 profile and referred for a Medical Evaluation Board (MEB).  “Bilateral chronic ankle pain” and “left shoulder pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “bilateral ankle pain” and “left shoulder pain” as unfitting, rated 0% and 0%, respectively, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI requests the Board consider all conditions.  His complete submission is at Exhibit A.

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/Naval 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:   
   
Service IPEB – Dated 20010706	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Pain	5099-5003	0%	Peroneal Tendon Subluxation Syndrome, Right Ankle 	5024
	10%	20011203	
			Peroneal Tendon Subluxation Syndrome, Left Ankle	5024	10%	20011203	
Left Shoulder Pain	5003	0%	Status Post (S/P) Dislocation Syndrome, Left Shoulder	5299-5203	10%	20011203	
Other MEB/PEB Conditions x 0  (Not in Scope)	Other x 10	
Combined:  0%	Combined:  50%	
*Derived from VA Rating Decision (VARD) dated 20020529 (most proximate to date of separation (DOS)). 

ANALYSIS SUMMARY:  The PEB combined the right and left ankle conditions as a single unfitting condition coded 5099-5003 (analogous to degenerative arthritis) and rated 0%, with application of the USAPDA pain policy.  However, the Board must apply separate ratings for each condition if they are achieved according to VASRD rating guidelines.  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.  

Bilateral Ankle Condition.  According to the narrative summary (NARSUM) and notes in the service treatment record (STR) the CI had bilateral ankle pain due to multiple ankle sprains resulting in bilateral peroneal tendon subluxation, which required ankle braces for stability during walking.  At the MEB NARSUM exam 14 March 2001, 7 months before separation, the CI reported constant low level bilateral ankle pain with use of braces.  The MEB physical exam noted full range-of-motion (ROM) of the ankle and foot joints, with tenderness to palpation (TTP) of both ankles and feet.  Subluxation of the peroneal tendons was demonstrated during the exam with inversion.  The MEB examiner listed diagnoses of chronic bilateral ankle pain.  Multiple temporary profiles in record from April 1999 to December 2000 and the permanent U3L2 profile dated 2 April 2004 listed the bilateral ankles.  The commander’s statement did not specifically identify the CI’s medical condition, but noted the CI’s duty performance was impaired by physical limitations specifically related to the upper extremities and also noted due to the “limitations of his profile,” which included no running, marching, jumping, walk to tolerance and “allow brace use.”  

At the VA Compensation and Pension (C&P) orthopedic exam on 3 December 2001 the CI reported bilateral ankle pain and instability.  The CI reported use of bilateral soft ankle braces for support and his last ankle sprain was a year or more earlier.  The exam noted a non-antalgic gait with the bilateral ankle supports.  There was no TTP or swelling of the ankles, but peroneal tendon subluxation was easily reproduced during the exam.  Right ankle ROM was plantar flexion (PF) 45 degrees (normal 45 degrees) and dorsiflexion (DF) 15 degrees (normal 20) and left ankle ROM was PF 50 degrees and DF 10 degrees.  There was no evidence of ankle joint instability with testing, but as noted there was subluxation of the peroneal tendons, with reproduction of discomfort.  Ankle X-rays were negative.

The Board first considered whether the evidence supports that each ankle remained reasonably considered unfitting when separated from the PEB’s combined adjudication.  In this case, both ankles were temporarily and permanently profiled and both ankles were equally implicated by the duty limitations noted in the commander’s statement and the NARSUM.  The Board noted that both ankles were addressed at treatment visits in the STR; the same diagnosis was provided by the podiatrist for each ankle; and, the NARSUM noted that the CI was referred for an MEB due to continued symptoms of both ankles.  Therefore, the Board unanimously agreed that the evidence supported that each ankle was considered reasonably unfitting and eligible for individual disability ratings.  The coding and rating features were nearly 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 ankles 0% as a bilateral condition, coded 5099-5003, analogous to degenerative arthritis, citing the USAPDA pain policy.  The VA rated the right ankle and the left ankle 10% each, coded 5024 (tenosynovitis).  The Board unanimously agreed that the evidence supports a 10% rating for the bilateral ankle condition coded as 5099-5024 and there was no evidence of “occasional incapacitating exacerbations” to support the 20% rating.  However, the Board majority agreed that the evidence supports a 10% rating for each ankle coded as 5299-5271 (analogous to limited ankle motion) IAW VASRD §4.59 (Painful motion) for painful, limited motion.  The Board reviewed to see if a higher rating for either or both ankles was supported with any other applicable code.  However, there was no evidence of deformity (astralgalectomy-removal of the talus), malunion, nonunion or ankylosis of the ankle or foot to support a higher rating.  The Board consensus was that the evidence supports a 10% rating for each ankle, coded 5299-5271, and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommended a disability rating of 10% each for the right and left ankle conditions.  

Left Shoulder Condition.  The NARSUM noted the CI had a history of a non-dominant left shoulder labral tear (joint cartilage), with instability.  Notes in the STR indicated the left shoulder had been dislocated during a training course when the CI was hanging off the ground from his arms.  Despite physical therapy, he continued to have shoulder pain and instability and he underwent surgery 19 June 1998 for repair of a cartilage tear (SLAP lesion) and significant degenerative changes of the shoulder joint capsule were noted, indicating instability.  Following the surgery, instability continued despite additional therapy and a second surgery to tighten the shoulder capsule (anterior capsular shift) was performed in April 1999. After the second surgery, the CI continued to have shoulder pain and notes in the STR noted persistent laxity.  At the MEB exam 26 April 2001, 6 months before separation, the CI reported certain shoulder positions or heavy lifting caused pain and felt like the shoulder was moving out of joint.  The MEB physical exam noted well healed surgical scars.  Shoulder ROM was flexion and abduction of 180 degrees (normal 180) with crepitus.  There were no signs of impingement.  There was a positive apprehension sign (pain or apprehension with abduction and external rotation of the shoulder), but other tests were negative for gross instability.  Shoulder joint laxity was noted that was equal to the unaffected right side.  Strength, sensation, and reflexes of the left upper extremity were normal.  The MEB examiner listed diagnoses of left shoulder pain, instability, and arthritis.

At the VA Compensation and Pension (C&P) exam 3 December 2001, 2 months after separation, the CI reported shoulder pain and feeling of instability with overhead motions.  The exam noted left shoulder ROM of flexion and abduction of 160 degrees each, which was equal to the right shoulder ROM.  There was a positive apprehension sign and the sulcus test (test for inferior or multidirectional instability) noted mild instability and positive impingement signs.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the shoulder condition 0%, coded 5099-5003, citing the USAPDA pain policy.  The VA rated the shoulder condition 10%, coded 5299-5203 (analogous to clavicle/scapula impairment, without loose movement).  The Board agreed that the evidence in record supports a 10% rating for the shoulder coded as 5299-5201 IAW VASRD 4.59 (Painful motion) for painful ROM.  The Board deliberated at length whether the evidence supports a 20% rating coded as 5202 (humerus impairment with recurrent dislocations and guarding at shoulder level).  Although the CI had a persistent feeling of instability, the MEB exam noted joint laxity that that was equal to the unaffected right side and there was no evidence of recurrent dislocation after the second surgery and the Board therefore determined that the evidence in record did not support the 5202 20% rating.  The Board next reviewed to see if a higher evaluation is supported with any other applicable code.  However, there was no evidence of arm motion limited to 25 degrees from the side, malunion or non-union of the shoulder, fibrous union or flail shoulder, clavicle /scapula impairment with loose movement, or ankylosis to support a higher rating.  Thus, the Board determined that the evidence supported a 10% rating for the shoulder and no higher, and chose to code as 5299-5201.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the shoulder condition.  

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 discussed above, PEB reliance on the USAPDA pain policy for rating the bilateral ankle and the shoulder conditions was operant in this case and the conditions were adjudicated independently of that policy by this Board.  In the matter of the bilateral ankle condition, the Board majority recommends a disability rating as follows: unfitting right and left ankle conditions, each rated 10%, coded 5299-5271 IAW VASRD §4.71a.  In the matter of the shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5201 IAW VASRD §4.71a.  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	5299-5271	10%	
Left Ankle Pain Condition	5299-5271	10%	
Left Shoulder Pain Condition	5299-5201	10%	
COMBINED (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141122, w/atchs
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 XXXXXXXXXXXXXXXXXXXX, AR20160005516 (PD201404314)

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 30% 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 30% 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