RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02127
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Network Switching Systems Operator, medically separated for “right bicipital tendonitis” and “chronic bilateral ankle instability,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  The CI submitted a 2-page contention.  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 - 20060608	VARD –20070801	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Bicipital Tendonitis…	5305	10%	Right Shoulder Injury…	5201	20%	20070207	
Chronic Bilateral Ankle Instability	5099-5003	10%	Left Ankle Instability	5299-5271	10%	20070207	
				5271-5014	10%	20070724	
			Right Ankle Instability	5299-5271	10%	20070207	
				5271-5014	10%	20070724	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Right Bicipital Tendonitis.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right hand dominant CI’s right bicipital tendonitis condition began in October 2002 after a motor vehicle accident.  Magnetic resonance imaging (MRI) of the shoulder showed a Bankart lesion (injury of the anterior, inferior glenoid labrum, usually due to anterior shoulder dislocation).  The CI was treated conservatively and deployed with his unit.  He was still having problems when he redeployed and underwent two arthroscopic surgeries – SLAP repair in September 2003 and biceps tendon repair with placement of a surgical screw (tenodesis) in February 2004.  He deployed again, but continued to have problems and when he returned with his unit he underwent a third surgery with partial removal of the biceps tendon (tenotomy) due to extensive damage.  Following the last surgery the CI continued to have shoulder pain with lifting more than the weight of a milk jug.  

During the 2 May 2006 MEB examination (recorded on DD Forms 2807 and 2808) 2 months prior to separation, the CI reported constant right shoulder pain.  Physical examination showed decreased shoulder range of motion (ROM) with “ok” strength.  The 2 May 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of shoulder pain.  Physical examination showed normal strength and sensation.  The NARSUM noted ROMs from physical therapy measured on 26 April 2006 as flexion 135 degrees (normal 180) and abduction 115 (normal 180), both with pain.  A 6 June 2006 NARSUM addendum responded to a PEB request for additional information about the CI’s pain, in which it described the CI’s shoulder pain as a constant ache graded 4/10 aggravated by any movement of the elbow or shoulder.  

At the 7 February 2007 VA Compensation and Pension (C&P) evaluation, 6 months after separation, the CI reported right shoulder pain and weakness of the right arm.  He reported daily pain in his arm and fatigue with any prolonged activity.  He had not missed any days of work as an administrative assistant.  He was able to work on a computer all day, noting some slowness with prolonged typing or writing.  Physical examination of the right shoulder showed ROM of flexion and abduction 125 degrees each, with pain.  There was some biceps weakness noted with shoulder flexion.  A second C&P examination was performed because the first one was deemed inadequate for rating purposes.  At the 24 July 2007 C&P evaluation, 12 months after separation, the CI reported chronic shoulder pain and limited motion.  The CI denied any incapacitating episodes or hospital admissions due to the shoulder condition in the past 12 months.  Physical examination showed tenderness to palpation of the anterior right shoulder and biceps tendon area.  There was painful, limited motion of the shoulder.  Forward flexion was 135 degrees and abduction was 110 degrees.  There was increased pain, fatigability, and lack of endurance with repetitive motion, but there was no additional loss of ROM.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right bicipital tendonitis condition 10%, coded 5305 (group V muscle injury – includes the long head of the biceps), citing “moderate” muscle injury.  The VA rated the right bicipital tendonitis condition 20%, coded 5201 (arm, limitation of motion), based on the C&P examination 6 months after separation, pending a re-examination.  The 1 August 2007 VARD continued the 20% rating, based on the C&P examination 12 months after separation, but noted that the criteria for a 20% rating were no longer met, but since the improvement may not be sustained, the rating was not changed, but was not considered permanent.  

The PEB rated the shoulder disability as a muscle injury IAW VASRD §4.73 (muscle injuries) and assigned a 10% rating for “moderate” muscle injury.  Under 5305 the next higher rating for the dominant upper extremity is 30% for “moderately severe” muscle injury.  In this case the rating was being used analogously to direct muscle injury due to the residual weakness from the injury and surgeries of the long head of the biceps tendon.  Loss of the function of the long head of the biceps is a common injury, usually due to rupture of the tendon, which is not routinely repaired, although it results in mild arm weakness.  There was nothing in evidence regarding the function of the right shoulder and arm that approximated the description of “moderately severe muscle injury,” which is characterized by the VASRD as such things as a deep penetrating wound with muscle scarring, hospitalization for a prolonged period, or loss of deep muscle tissue or muscle atrophy, with more severe manifestations of the cardinal signs/symptoms of muscle injury - loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.  The CI had not missed work due to the shoulder, he denied any incapacitating episodes in the past 12 months, and the evidence supports that the shoulder/arm strength was limited by pain with lifting weight.  The panel next considered if a higher rating was available IAW VASRD §4.71a (musculoskeletal injuries).  There was insufficient limitation of motion to support a rating under the 5201 code.  However, panel members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion).  There was no malunion or recurrent dislocation of the humerus to justify a rating under the 5202 code (humerus, other impairment of); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under the 5203 code (clavicle or scapula, impairment of).  Therefore, there was no higher rating than 10% supported under any alternate VASRD code.  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 bicipital tendonitis condition.  

Chronic Bilateral Ankle Instability.  The PEB combined the right and left ankle conditions under a single disability rating, coded analogously to 5003 and rated 10% with application of the US Army Physical Disability Agency pain policy and AR 635-40 B24.f.  This 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 noted that “bundling,” the combining of two 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 two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if 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 ankle conditions is presented below, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to STR and the MEB NARSUM, the CI’s bilateral ankle instability condition began in September 2001.  He injured both ankles in a flag football tournament.  He was evaluated by podiatry and treated with physical therapy without improvement.  MRI of both ankles on 28 November 2005 was normal, with the left ankle MRI noting probable old avulsion fracture of the medial malleolus (occurs with severe sprains when ligament is injured and pulls off a small piece of bone with it).  He was referred to orthopedics in December 2001 and underwent an arthroscopic surgery to repair the right ankle interosseous ligament (ligaments between the tibia and fibula) in April 2002.  He did not improve and a second orthopedic opinion offered a second surgery, but there was no guarantee of success sufficient to provide a return to full duty, so the CI chose to continue on profile and use a brace.  A left ankle surgery was planned eventually, but the CI was in a motor vehicle accident in October 2002 (noted above) and the left ankle surgery was not done, but he continued with instability of both ankles and frequent ankle sprains.  The CI was deployed twice (March 2003 and November 2004) and was able to complete his tasks within the limits of his profile.  Left ankle X-rays 30 March 2004 were normal but noted lateral swelling.  

The 2 February 2006 permanent profile listed the right shoulder biceps tenotomy and bilateral ankle instability.  The 8 May 2006 commander’s statement implicated primarily the right shoulder and right ankle but referred to “ankle injuries” as impairing the CI’s successful performance of his duties.  The commander stated the CI’s performance within his profile limitations “was admirable“  His duties included convoy operations, security escort for the commander, and being a member of the “Base Security/Quick Reaction Force Team.”  According to the commander, the CI worked very had outside of his MOS, but struggled because “his ankle injuries made it difficult to run on uneven ground, carry heavy loads and be effective in a field environment.”  
The 2 May 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of daily ankle pain graded 3-5/10.  Physical examination showed normal strength and sensation.  Right ankle ROM was plantar flexion (PF) 50 degrees (normal 45) and dorsiflexion (DF) 5 degrees, normal 20), both with painful motion.  Left ankle ROM was PF 60 degrees without pain and DF 5 degrees with mild pain.  The MEB NARSUM indicated that the CI was able to serve with his bilateral ankle condition, but it was felt that continued service would lead to further damage and greater disability.  The MEB NARSUM examiner determined that the CI did not meet retention standards for the bilateral ankle condition IAW AR 40-501, Chap. 3-13, d. (3), ankle motion that does not equal or exceed DF to 10 degrees or PF to 10 degrees.  Physical therapy ROM measured on 18 May 2006 was right ankle PF 35 degrees and DF 0 degrees with mild pain and left ankle ROM was PF 50 degrees and DF 0 degrees with pain. 

At the 7 February 2007 C&P evaluation the CI reported continued instability with pain due to overuse and frequent sprains.  Physical examination did not address the ankles.  The VA examiner noted that the chronic bilateral ankle instability “clearly does not directly affect his occupation because of his primarily seated position.”  A second C&P examination was performed because the first one was deemed inadequate for rating purposes.  At the 24 July 2007 C&P evaluation the CI reported intermittent pain of the left ankle with overuse.  He was not using any braces or assistive devices.  He denied any incapacitating episodes or hospital admissions in the past 12 months due to the ankle conditions.  On physical examination gait was normal.  There was right ankle tenderness.  There was “mild” pain with “mild” limitation of right ankle DF of 15 degrees, PF was 40 degrees.  There was increased pain, fatigability, and lack of endurance with repetitive motion, but there was no additional loss of ROM.  Left ankle ROM was DF 20 degrees and PF 40 degrees.  With repetitive motion, the CI reported pain at 15 degrees and there was fatigability and lack of endurance without additional loss of ROM.  

Directing attention to its recommendations, the panel first considered if both the right and left ankle conditions met the panel’s threshold for separate ratings (as elaborated above).  The bilateral ankles were permanently profiled, implicated by the commander’s statement and judged to fail retention standards.  Notes in the STR indicated that although the CI underwent surgery for the right ankle, left ankle surgery had been planned but not accomplished, and the CI experienced multiple injuries due to instability (sprains) of both ankles.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that each of the bundled ankle conditions was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting ankle conditions at the time of separation.  The medical evidence for the right and left ankles was nearly identical, therefore the rating of the ankles is discussed together.  

The panel directed attention to its rating recommendations based on the above evidence.  The PEB rated the bilateral ankle instability condition 10%, analogously coded as 5003 (arthritis, degenerative), citing the US Army Physical Disability Agency pain policy.  The VA separately rated the left and right ankle instability conditions 10%, both coded analogously as 5271 (limited ankle motion), based on the C&P examination 6 months after separation, citing moderate limited ankle motion.  Following the second C&P examination 12 months after separation, the VA continued the 10% rating of each ankle with a code change to 5271-5014 (limited ankle motion – osteomalacia).  The evidence in record indicated that functionally the CI was able to deploy twice to Iraq with his ankle injuries and according to the commander performed admirably in his duties within profile limitations (outside his PMOS).  MEB physical therapy examinations proximate to separation recorded loss of bilateral ankle DF but with near normal PF.  The post–separation VA examination showed improvement in the ankle pain with intermittent left ankle pain reported, and improved ROM, with normal DF and near normal PF and a normal gait.  Members agreed that the preponderance of the ROM evidence was more reasonably characterized as “moderate” limitation of motion, which was consistent with a 10% rating under diagnostic code 5271 for each ankle.  The panel considered alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to 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 right ankle condition and 10% for the left ankle condition, both coded 5271.  

BOARD FINDINGS:  In the matter of the right bicipital tendonitis condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the chronic bilateral ankle instability condition, the panel unanimously recommends an unfitting right ankle condition and an unfitting left ankle condition, each rated 10%, both 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; 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	
Right Bicipital Tendonitis	5305	10%	
Right Ankle Instability	5271	10%	
Left Ankle Instability	5271	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150803, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record  

AR20170017359, 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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

Sincerely,					      
Enclosure