RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01613
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070413

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Trainee, medically separated for “bilateral ankle pain and instability” with a disability rating of 10%.  

CI CONTENTION:  The CI requested a review of all conditions.  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 - 20070403	VARD - 20080625	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Pain and Instability ...	5099-5003	10%	Tear Of The Anterior Talo Fibular Ligament and Calcaneofibular Ligament, Left Ankle, Thickening of the Anterior Talofibular Ligament, Right Ankle, and Bilateral Achilles Tendinopathy	5024	0%	20080409	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:    

Bilateral Ankle Condition.  The panel provides the following clarification regarding its approach to PEB consolidated ratings.  The PEB combined the right and left ankles under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 10%, referencing the U. S. Army Physical Disability Agency (USAPDA) pain policy.  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 also noted that “bundling,” the combining of two or more major joints, may be permissible under VASRD criteria of 5003, and that this approach does not necessarily compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  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 service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered a strain injury of her right ankle in April 2006 (basic training, 12 months before separation), followed that June by a similar injury on the left.  Imaging (MRI) demonstrated bilateral ligamental injuries (tears of the anterior talofibular [ATF] and calcaneal fibular ligaments on the left, and ATF thickening suggestive of chronic tear on the right) and bilateral achilles tendonopathy (no tear).  There was one outpatient STR entry that recorded grossly normal range of motion (ROM) and “mild” bilateral instability (anterior drawer); but, there were no other entries probative to gait, ROM, or other VASRD-ratable findings.  Surgery was considered and reasonably declined by the CI.  Conservative treatment did not result in sufficient improvement to allow a timely resumption of training and she was referred for MEB.

The 28 February 2007 NARSUM examination, 2 months before separation, stated “her pain pattern has greatly improved, however, she still complains of left greater than right ankle instability;” and, the examiner rated the pain as “slight and constant.”  The physical examination recorded a normal gait, the bilateral absence of edema, no tenderness, no instability to stress of the right ankle, and mild instability (1+ anterior drawer with firm endpoint, otherwise stable) of the left ankle.  Goniometric ROM measurements were provided by physical therapy in close proximity to the NARSUM.  These were average dorsiflexion to 6 degrees right and 3 degrees left (normal 20), and bilateral average plantar flexion to 45 degrees (normal), specifying painful motion.  The permanent L3 profile was for “bilateral ankle pain,” and the commander’s performance statement was not probative to separate fitness implications of either ankle.

A 9 April 2008 VA Compensation and Pension (C&P) examination, 12 months after separation, documented intermittent bilateral ankle pain rated 4/10 that limited prolonged standing (2-hour tolerance), “walking fast,” and running.  The physical examination (findings bilateral) recorded a normal gait, no edema or tenderness, and no instability.  Measured ROM was normal bilaterally for dorsiflexion and plantar flexion; and, the examiner specified the absence of painful motion or degradation with repetition.  

The panel directed attention to its rating recommendation(s) based on the above evidence.  The PEB rated the bilateral ankle pain and instability condition 10%, coded analogously as 5003, citing the condition as “slight and constant”.  The VA rated the bilateral ankle pain condition 0%, coded 5024 (tenosynovitis, defaulting to criteria of 5003) based on the C&P evidence citing normal ROM without painful motion.  

The panel first considered if the bilateral joint condition met the threshold for separate ratings as elaborated above.  The profile, commander’s statement and other STR evidence did not provide any information that would permit the panel to discriminate the performance limitations attributable to either ankle over the other.  Since undue speculation would be required to conclude that the limitations imposed by either ankle would not have prohibited completion of training and continuation of military service, members agreed that each joint was reasonably justified as separately unfitting and merited a separate service disability rating.  

Having so agreed, members turned to deliberation of the appropriate rating recommendation for each ankle.  Given the specific documentation of painful motion for each joint per the NARSUM and PT evidence, members agreed that the minimum rating was supported IAW VASRD §4.59 regardless of the code applied.  Code 5271 (ankle, limited motion) confers a 20% rating for “marked” limitation; but, members agreed that the ROM limitation in evidence was more appropriately characterized as “moderate” (the 10% criterion of 5271).  Although dorsiflexion was restricted by pain to ~25% of normal at the time of separation (temporarily so as per the C&P evidence), the more functionally critical plantar excursion (e.g., propulsion) was normal.  Given the absence of ankylosis, nonunion, or malunion, VASRD §4.71a offers no applicable code which would yield a rating higher than 10% for this case.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends separate 10% ratings for each ankle under code 5024-5271. 

BOARD FINDINGS:  In the matter of the bilateral ankle condition, the panel unanimously recommends that each joint be rated as separately unfitting at 10%, each coded 5024-5271 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	
Right Ankle Pain	5024-5271	10%	
Left Ankle Pain	5024-5271	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

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

AR20170008825, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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