RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00092
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051020

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Wheeled Vehicle Mechanic, medically separated for “chronic bilateral ankle instability/pain” with a disability rating of 10%.  

CI CONTENTION:  “Conditions have worsened.”  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 - 20050908	VARD - 20060224	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Ankle Instability/Pain	5099-5003	10%	Residual of Left Ankle Injury with Degenerative Joint Disease and Instability	5010	10%	20060107	
			Residual of Right Ankle Injury, Post Op, with Degenerative Joint Disease	5010	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Bilateral Ankle Instability/Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic bilateral ankle instability/pain condition began in August 2001 after jumping and coming down on his right ankle.  The CI underwent two right ankle surgeries (Brostrom procedures) in October 2001 and July 2004 to correct the right ankle instability which continued to have chronic pain.  The CI injured his left ankle in March 2005 resulting in instability and ligament deficiency which was not recommended for surgical correction.  The MEB forwarded “chronic right ankle pain, subsequent to a Brostrom procedure of right ankle instability” and “severe left ankle instability with chronic pain” for PEB adjudication.  

At the 24 January 2005 right ankle evaluation, the CI complained of continued right ankle pain and instability.  On examination, there was full active range of motion (ROM) with snapping over the lateral malleolus (ankle bone) with laxity (positive drawer) and weakness of 3/5 (normal 5/5) and no neurovascular deficit.  The 29 April 2005 left ankle orthopedic evaluation showed tenderness with a positive talar tilt with frank medial subluxation of the tibia.  The orthopedic surgeon stated “chronic deficiency of his (ligaments) which were not even palpable on my examination” and that given the continued right ankle pain following surgery, the physician did not recommend left ankle surgical repair.  

The 2 August 2005 MEB NARSUM examination, 2 months prior to separation, noted complaints of right and left ankle pain with instability.  Physical examination showed the right ankle with full active ROM and no instability.  There was tenderness to palpation over the lateral malleolus of the right ankle (surgical area with scar).  The left ankle demonstrated ligamentous laxity and instability (positive drawer and positive talar tilt with significant subluxation of the tibia).  X-rays of the bilateral ankles showed bilateral degenerative joint disease.  

At the 7 January 2006 VA Compensation and Pension (C&P) evaluation, performed 3 months after separation, the CI reported bilateral ankle pain and left ankle joint laxity.  Physical exam showed full ROM of both ankles.  The right ankle had “some laxity” and the left ankle had “significant laxity” with pain on motion.  X-rays showed evidence of old ligament injuries in both ankles.  

The panel directed attention to its rating recommendation based on the above evidence.  

The PEB combined the left and right ankle conditions as chronic bilateral ankle instability/pain under a single disability rating, coded analogously to 5003 (arthritis, degenerative), 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 VA rated the residual of left ankle injury with degenerative joint disease and instability condition 10% coded 5010 (arthritis, due to trauma, substantiated by X-ray findings), based on the STR, citing findings by the MEB of degenerative joint disease on imaging with demonstrated instability and subluxation with a positive drawer and talar tilt.  The VA also rated the residual of right ankle injury, post op, with degenerative joint disease condition 10% coded 5010, based on the STR, citing chronic disability with MEB findings of chronic pain and arthritic changes on imaging.  

The profile listed bilateral ankle instability, each ankle was adjudged to separately fail retention standards by the NARSUM and MEB, and the STR indicated multiple treatment episodes for each ankle.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that either the left or right ankle condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting left ankle and unfitting right ankle conditions at the time of separation.  

There was no limitation of dorsiflexion or plantar flexion that supported a rating under the VASRD diagnostic code for limitation of motion (5271) for either ankle.  However there was evidence of functional loss (§4.40, §4.45, §4.59) due to instability and pain supporting a 10% rating for each ankle.  The Board adjudged that code 5299-5010 was predominate for each ankle.  The panel adjudged that there was insufficient evidence of moderate ankle disability for the next higher rating under code 5262 (Tibia and fibula, impairment) or of moderately severe foot injury for any higher rating under code 5284 (foot injuries, other).  The panel considered alternative VASRD ankle and analogous codes, but all were less applicable and/or 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 left ankle and 10% for the right ankle chronic ankle instability/pain condition, coded 5299-5010.  

BOARD FINDINGS:  In the matter of the bilateral ankle condition, the panel unanimously recommends that each joint be separately adjudicated as follows: an unfitting left ankle condition coded 5299-5010 and rated 10%, and an unfitting right ankle condition, coded 5299-5010  and rated 10%, both 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 Bilateral Ankle Instability/Pain	Left	5299-5010	10%	
	Right	5299-5010	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013296, 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