RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01318
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051014

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, M1 Abrams Tank Systems Maintainer, medically separated for “chronic bilateral ankle pain,” rated 0%.

CI CONTENTION:  “Immense pain when my ankles roll which in return has caused my knee pain to increase as well.”  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 - 20050922	VARD - 20140517	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Ankle Pain	5099-5003	0%	Left Ankle Sprain with Instability	5271	10%	20140213	
			Right Ankle Sprain with Instability	5271	0%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:    

Chronic Bilateral Ankle Pain.  The PEB combined the left and right ankle conditions as a single unfitting condition coded 5099-5003 and rated 0% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  The 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.  The panel also noted that “bundling,” the combining of 2 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 2 valid ratings.   The panel’s initial charge in this case was 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 the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel 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 left and right ankle conditions are presented concurrently, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered a right ankle inversion injury when running in October 1998 and in February 2004 he had a left foot and ankle inversion injury while on gate duty.  An X-ray of the right ankle dated 30 October 2004, ordered for pain at the ATFL (anterior talofibular ligament) with slight laxity on anterior drawers, demonstrated lateral soft tissue swelling consistent with a sprain and mild osteophyte formation (arthritis) of the distal anterior malleolus (lateral ankle) consistent with post traumatic degenerative spurring.  An X-ray of the left ankle dated 10 February 2004 demonstrated lateral soft tissue swelling and ankle joint effusion without any fracture.  An X-ray series of the left ankle dated 23 October 2004 showed a tiny linear calcification adjacent to the medial margin of the talus which could have represented a small avulsion injury or an accessory ossification (bony formation) or ligamentous calcification.  Although there was a surgical indication, which the CI did not pursue and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic bilateral ankle pain and documented bilateral ankle joint instability” for PEB adjudication.

At the time of the orthopedic MEB consult on 14 July 2005, 3 months prior to separation, the CI reported bilateral ankle pain rated 1/10 (10 being the worst pain) in severity.  On examination, gait was normal, reciprocal, and non-antalgic.  ROM bilateral measurements were dorsiflexion at 25 degrees (normal 20) and plantar flexion at 50 degrees (normal 45).  Testing for instability showed a slight amount of bilateral laxity of the ATFL and the calcaneofibular ligament (CFL) more so on the right than the left.  The left ankle had mild tenderness over the lateral ankle ligaments, while the right had none.  Radiographic studies performed with the ankles under stress revealed a slight opening on subtalar tilt testing of the right ankle; however, it did not meet the “radiographic criteria for instability.”  An undated commander’s statement indicated the CI had no MOS duty restrictions, but had profile limitations including inability to move with a fighting load or perform rushes under direct or indirect fire, and the CI was non-deployable.  
  
During the 3 August 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months prior to separation, the CI reported his right and left ankles swelled and were painful, more so on the left than the right and he wore a brace on each ankle when in PT uniform.  Physical examination revealed ROM measurements were dorsiflexion 14 degrees on the right and 16 degrees on the left, while plantar flexion was 40 degrees on the right and 30 on the left.  The 30 August 2005 MEB NARSUM examination, 2 months after separation, noted complaints of bilateral ankle pain as 4/10 baseline with flares to 6-7/10 with activity and occasional numbness in the third and fourth toes of his left foot.  Occasionally he felt unsteady and his ankle gave way under certain circumstances.  Prolonged standing increased his pain as did excessive climbing on equipment and walking on unstable ground; and, he had left ankle pain when he climbed on ladders.  The examiner’s diagnosis was chronic, bilateral ankle pain and documented bilateral ankle joint instability.  An orthopedic evaluation on 3 November 2005, 1 month post-separation, indicated the CI had ongoing problems with his left ankle since the time of injury 21 months earlier.  The CI noted intermittent episodes of pain in the lateral foreleg (front of the leg) and ankle to the dorsal aspect of his left foot to his toes, which was worse with weight bearing and ambulation.  Various braces provided no relief, although his work boot seemed to provide good support for the ankle.  He had intermittent episodes of swelling about the ankle, and when the weather was “moist” or “cold,” his ankle seemed to be more symptomatic.  On examination, the CI ambulated normally.  The left foreleg was unremarkable, while the left ankle revealed no increased warmth, slight swelling over the anterolateral aspect, slight tenderness in the ATFL area, dorsiflexion 5 degrees, plantar flexion 45 degrees, normal subtalar motion, and slight to mild lateral instability.  The left foot examination was unremarkable.  Left ankle X-rays showed no bony or soft tissue abnormalities.  The examiner’s diagnoses were a grade II to III sprain of the ATFL and the CFL and persistent posttraumatic and episodic left anterolateral ankle pain, due to slight to mild instability of the ankle as a consequence of slight to mild laxity of the ATFL and CFL.  Options of wearing an ASO ankle brace to stabilize the ankle when awake versus reconstruction of the ATFL and CFL were offered; however, the CI desired to use the ASO ankle brace and perform foreleg strengthening exercises.

There was no VA examination proximate to separation.  Nevertheless, almost 9 years after separation the clinical findings were consistent with the orthopedic examination 1 month post-separation.

The panel directed attention to its rating recommendation based on the above evidence.   The PEB rated the bilateral ankle condition 0% rating, coded 5099-5003 (arthritis, degenerative), citing a rating for pain-minimal, frequent IAW criteria of the U.S. Army Physical Disability Agency pain policy.  The VA remotely rated the right ankle condition 0% and rated the left ankle 10% rating, coded 5271 (limited motion of the ankle) for each ankle, based on a VA C&P examination 9 years post-separation, citing a noncompensable rating for the right ankle and moderate limitation of motion of the left ankle.  

Directing attention to its recommendations, the panel first considered whether right and left ankle conditions met the panel’s threshold for separate ratings.  While the commander’s statement indicated the CI had no MOS restrictions related to his condition, the CI was not working in his MOS and he had profile restrictions relating to his military duties as well as deployment.  Furthermore, at an orthopedic examination 1 month after separation the CI was noted dorsiflexion of the left ankle limited to 5 degrees and the CI had persistent posttraumatic and episodic left anterolateral ankle pain, due to slight to mild instability as a result of the mild laxity of the ATFL and CF ligaments for which an ASO ankle brace was prescribed.  Therefore, a separate rating for the left ankle is appropriate.  The panel next considered if right ankle was separately unfitting.  While it is not clear from the STRs why there was a diminution of the dorsiflexion measurements from a normal ROM 3 months prior to separation to 5 degrees 1 month after separation, nonetheless, the CI had a disability that warranted the use of an ASO ankle brace in lieu of surgery.  The panel also determined the right ankle was separately unfitting.  A 10% rating using code 5271 for a moderate limitation of motion is not unreasonable for the left ankle, whereas a 0% rating for the right ankle is likewise not inappropriate since there was no documented limitation of motion.  The panel considered alternative VASRD ankle and analogous codes, but in the absence of ankylosis (5270 and 5272), malunion of the os calcis (heel bone) or astragalus (talus) (5273) or astragalectomy (5274) they were inapplicable for a route to a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the chronic left ankle pain condition, coded 5271 and a disability rating of 0% for the chronic right ankle pain condition, coded 5271.

BOARD FINDINGS:  In the matter of the chronic left ankle pain condition, the panel unanimously recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  In the matter of the chronic right ankle pain condition, the panel unanimously recommends a disability rating of 0%, coded 5271 IAW VASRD §4.71a.  There are no other conditions within the panel’s 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	
Chronic Left Ankle Pain	5271	10%	
Chronic Right Ankle Pain	5271	0%	
COMBINED	10%	

The following documentary evidence was considered:

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

AR20170007630, XXXXXXXXXXXXXXXXXX.

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Dear XXXXXXXXXXXXXXXXXX:

	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,