RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00658
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Light Wheeled Vehicle Mechanic, medically separated for “bilateral foot and ankle pain,” with a disability rating of 0%.

CI CONTENTION:  The CI requested all conditions be reviewed.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20041027	VARD – N/A	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Foot and Ankle Pain	5099-5003	0%	No VA Examination in Evidence	
Depressive Disorder	Not Unfitting		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  N/A	

ANALYSIS SUMMARY:  

Bilateral Foot and Ankle Pain.  The PEB combined bilateral lower extremity pain under a single service disability rating as elaborated below.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and that there was no need for separate fitness adjudications.  The panel’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 panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates that it alone would not have caused the member to be referred into the DES or be found unfit because of physical disability.
According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI first experienced an atraumatic onset of right distal leg and ankle pain in July 2001 during basic training.  The orthopedic examination on 21 July 2004, 5 months prior to separation, reported complaints of bilateral leg and ankle pain, which the examiner specifically localized to the lower shins.  Physical examination revealed a normal stance, normal (5/5) strength in all planes of ankle motion, pes planus without other foot or ankle malalignment, tenderness of the right shin extending to the medial malleolus, but no tenderness on the left.  The examiner noted that ankle dorsiflexion (lifting the foot up), which was unclear if bilateral or right only, was limited to 10 degrees (normal 20), but did not specify painful motion.  The 17 August 2004 NARSUM examination, 2 months before separation, reported complaints of bilateral “lower extremity pain...worse in the ankles but also significant in his shins, feet, and heels,” exacerbated by prolonged standing and general soldiering activities.  Physical examination revealed bilateral shin and medial ankle tenderness, with no comment regarding ROM or painful motion.  The MEB’s DA Form 3947 submission was “chronic bilateral leg and ankle pain” that failed retention standards.  The permanent L3 profile was for “leg and ankle pain,” and the commander’s performance statement addressed “chronic ankle and shin pain.”  There was no evidence probative to separate fitness implications of the right versus left leg.  There was no evidence that significantly implicated knee complaints or addressed physical findings for the knees.  There was no VA claim, examination, clinical notes, or other post-separation evidence.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s bilateral 0% rating was under code 5099-5003 (analogous to degenerative arthritis) and cited “rated for pain – moderate,” connoting application of the US Army Physical Disability Agency (USAPDA) pain policy.  An issue in this case was the variance in the anatomic location of the conditions being rated, which carries implications regarding code selection and consequent rating.  Although the PEB localized the disability to the feet and ankles (as charted above), the MEB, corroborated by other STR evidence, included more diffuse lower leg pain logically ascribed to tibial periostitis (shin splints).  It was noted, though, that evidence near separation indicated the unfitting pain merged at the lower legs, ankles and feet.  Members agreed that, even if the existence of separate diagnoses and conditions were conceded, they could not be separately coded and rated without violation of VASRD §4.14 (avoidance of pyramiding).  The PEB’s bilateral 0% rating under code 5003 rested on application of the USAPDA pain policy, but a bilateral rating of 0% does not comport with VASRD §4.71a.  That paragraph confers a 10% rating under criteria of 5003 for the involvement of “2 or more major joints” without specifying a need for additional criteria.  Under the more specific code 5022 (periostitis), which defaults to criteria of 5003, a bilateral rating of 10% would be VASRD compliant and would clinically capture all of the relevant pathology under consideration.  The panel, however, had to first consider whether separate right and left ratings were reasonably justified in lieu of a single bilateral rating (per the above standard).  

The profile, commander’s statement and other STR evidence did not provide any information that would permit the panel to discriminate performance limitations attributable to either extremity over the other.  Member consensus was that each extremity was reasonably conceded as separately unfitting, justifying separate ratings.

The panel turned next to its rating recommendation.  Panel consensus was that it was fair to concede painful motion in support of a 10% rating for each extremity IAW VASRD §4.59.  There was no evidence for ROM limitation or any other ratable criterion that would justify a rating higher than 10% for either extremity under any other applicable code.  This included consideration of codes 5276 (pes planus) and 5271 (ankle, limited motion), and there was no support for application of any alternative foot code.  The panel considered analogous rating under code 5262 (tibia and fibula, impairment of), but members agreed that this was not justified.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the panel majority recommendations separate 10% ratings for each lower extremity condition (foot, ankle, and distal tibia) under code 5022.  

Contended PEB Conditions:  Depressive Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the bilateral lower extremity condition, the panel by a majority vote recommends that each lower extremity condition (foot, ankle, and distal tibia) be rated as separately unfitting at 10%, each coded 5022 IAW VASRD §4.71a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  In the matter of the contended depressive disorder, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There are no other conditions in the scope of review for consideration.  

The panel 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	
Diffuse Periostitis of the Left Lower Extremity	5022	10%	
Diffuse Periostitis of the Right Lower Extremity	5022	10%	
COMBINED (w/BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150606, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170006461, XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure