RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01937
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020411

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “back pain,” "right ankle instability” and "left ankle instability" rated 10%, 10% and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  “Review 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 - 20011130	VARD - 20030226	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain	5299-5295	10%	Herniated Disc at L4-5 and L5-S1 	5293	10%	20030121	
[Right] Ankle Instability	5299-5262	10%	Recurrent Ankle Sprain, Right Ankle	5271	0%		
[Left] Ankle Instability	5299-5262	0%	Recurrent Ankle Sprain, Right Ankle	5271	0%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Back Pain.  According to service treatment records (STR) the CI’s back condition began in February 2000 when he stepped awkwardly over a trench while wearing full gear.  The CI developed lower back pain and diagnostic imaging showed non-encroaching disk bulges at the two lower lumbar spaces and a bony fragment encroaching on the right S1 nerve root producing spinal stenosis.  The CI was not a surgical candidate.  

At the June 2001 Medical Evaluation Board (MEB) examination (recorded on DD Forms 2807-1 and 2808), 10 months prior to separation, the CI reported lower back pain and herniated disks.  Physical examination showed spine range of motion (ROM) limited by pain to flexion of 45 degrees.  Heel walking and toe walking were intact and reflexes were 3/3+ (hyper-reflexive) bilaterally and symmetric.  Bilateral lower extremity strength was normal and there was no lower extremity sensory deficit.  

The 9 August 2001 MEB narrative summary (NARSUM) examination, 8 months prior to separation, noted complaints of low back pain made worse by activity or prolonged sitting.  There were also episodes of bilateral numbness in the ankles and L4 distribution.  Lower extremity strength and sensation were normal.  Reflexes were normal at the knees, three at the left ankle and two at the right ankle.  Physical examination showed back flexion to 90 degrees and extension to 30 degrees with painful motion.  FABER’s test (for piriformis or sacroiliac joint irritation) was positive for increased back pain.  

At the 21 January 2003 VA Compensation and Pension (C&P) evaluation, performed 9 months after separation, the CI reported chronic lower back pain with flares.  Physical examination showed a normal gait.  Back ROM was flexion to 90 degrees and extension to 10 degrees with painful motion.  Motor, sensory and reflex testing were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain condition 10%, coded 5299-5295 (lumbosacral strain), citing pain with motion.  The VA rated the back condition 10% coded 5293 (intervertebral disc syndrome), based on the C&P examination 9 months after separation, citing mild symptoms associated with intervertebral disc syndrome.  

The 2001 VASRD coding and rating standards for the spine, which must be applied to the panel’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  Note:  Although the VASRD spine criteria were changed to the current formula on 26 September 2003, the VARD applied the older as well as the newer criteria to rating in this case.  The applicable coding options for this case are excerpted below.  

5285 Vertebra, fracture of, residuals:
With cord involvement, bedridden, or requiring long leg braces Consider special monthly compensation; with lesser involvements rate for limited motion, nerve paralysis.  ..................... 100
Without cord involvement; abnormal mobility requiring neck brace (jury mast).................... 60
In other cases rate in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body.
Note: Both under ankylosis and limited motion, ratings should not be assigned for more than one segment by reason of involvement of only the first or last vertebrae of an adjacent segment.  

5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20	
Slight ........................................................................................................................................ 10

5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with: sciatic neuropathy with    characteristic
pain and demonstrable muscle spasm, absent ankle jerk, or other   neurological findings 
appropriate to site of diseased disc, little intermittent relief ............................................. 60
Severe; recurring attacks, with intermittent relief .................................................................. 40
Moderate; recurring attacks .................................................................................................... 20
Mild .......................................................................................................................................... 10
Postoperative, cured ................................................................................................................. 0
5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion ...................................................... 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
standing' position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10

The panel agreed that the NARSUM examination was closest to separation and had the highest probative value for rating at separation.  The panel agreed that a 10% rating was justified for the presence of painful motion.  There was insufficient limitation of motion to support a 20% rating for moderate limitation of motion, or evidence for moderate recurring attacks of symptoms of intervertebral disc syndrome.  There was diagnostic imaging evidence of a spine fracture, but insufficient evidence of spasm or limited motion at the NARSUM examination to add a 10 percent for demonstrable deformity of vertebral body IAW code 5285.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back pain condition.  

Bilateral Ankle Instability.  According to STRs and the MEB NARSUM, the CI’s bilateral ankle instability condition began in July 1999 after repetitive inversion injuries to each ankle treated with bilateral braces and physical therapy.  There was no surgical recommendation.  The 9 August 2001 MEB narrative summary (NARSUM) examination, 8 months prior to separation, noted complaints of easily inverted ankles while marching or walking on any type of uneven terrain, with ankle instability with "popping."  “He denied any true mechanical symptoms or any anterior effusion or pain.”  Physical examination showed normal appearing ankles without edema, ecchymosis, or tenderness.  The ROM was 40 degrees of plantar flexion (normal 45) and dorsiflexion of 20 degrees (normal).  Tilt tests were symmetrical at 25 degrees (clinical normal 4 degrees; abnormal greater than 9 degrees).  The examiner stated “he has anterior drawers bilaterally, which are slightly symmetrically with the right being worse than on the left.  

At the 21 January 2003 C&P evaluation the CI reported that the “recurrent inversion injuries quickly abated after [the CI] was discharged and ceased wearing of combat boots.”  The CI stated that he was currently asymptomatic and had last rolled his right ankle due to ambulating on an uneven surface.  X-rays were negative.  Physical examination showed a normal non-antalgic gait.  There was no tenderness or signs of effusions or swelling around the ankles.  ROM of each ankle was normal (20 degrees of dorsiflexion and over 45 degrees of plantar flexion bilaterally).  Strength with great toe extension and resisted inversion and eversion, plantar flexion, and dorsiflexion was normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral ankle instability condition coded 5299-5262 (tibia and fibula, impairment of), with a separate 10% rating for the right ankle and 0% for the left ankle citing anterior drawer bilaterally with the right being worse than the left.  This was not considered a bundling of ankle conditions, but a separately unfitting and rated right ankle condition and a separately unfitting and rated left ankle condition.  The VA rated the left ankle and the right ankle conditions each 0%, coded 5271 (ankle, limited motion), based on the C&P examination 9 months after separation.  

The panel considered that the NARSUM examination was closest to separation and had the highest probative value for rating at separation, as the VA examination likely indicated post-separation improvement.  There was no limitation of dorsiflexion or plantar flexion that supported a rating under the VASRD diagnostic code for limitation of motion (5271) and the NARSUM (and VA) examination did not note the presence of painful joint motion for either ankle.  However, the examination noted abnormal tilt test of 25 degrees for each ankle and positive “anterior drawers bilaterally, which are slightly symmetrically with the right being worse than on the left.”  

Right Ankle.  The panel concurred that a 10% rating for functional loss (§4.40, §4.45, §4.59) due to instability was appropriate, for the right ankle as adjudicated by the PEB.  The panel deliberated if the left ankle reached the “slight knee or ankle disability” criteria under code 5262, or a 0% rating IAW VASRD §4.31 (if the requirements for a compensable evaluation are not met).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right ankle condition.  

Left Ankle.  There was no difference in the history or scant STR clinical notes for differentiating the functional loss from the left ankle from the right ankle condition.  The single examination difference was the NARSUM examiner’s statement on anterior drawer testing being “slightly symmetrically with the right being worse than on the left,” but with symmetric abnormal tilt testing.  The panel adjudged that there was sufficient evidence of slight disability of the left ankle to warrant a 10% rating under analogous code 5262.  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 left ankle condition, coded 5299-5262.  

BOARD FINDINGS:  In the matter of the back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the right ankle instability condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the left ankle instability condition, the panel unanimously recommends a disability rating of 10%, coded 5299-5262 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; 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	
Back Pain	5299-5295	10%	
Right Ankle Instability	5299-5262	10%	
Left Ankle Instability	5299-5262	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150707, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170009308 , XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

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

Sincerely,					      
Enclosure