RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00326
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040520

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Signal Support Systems Specialist, medically separated for “chronic left ankle and foot pain” with a disability rating of 0%.

CI CONTENTION:  The CI contends for a higher rating.  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 - 20040330	VARD - 20040913	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Ankle and Foot Pain	5099-5003	0%	Status Post Deltoid Ligament Reconstruction	5271	20%	20040503	
			Left Talus Fracture, Postoperative	5284	10%	20040503	
RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Left Ankle and Foot Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered a left ankle fracture (non-displaced talus) from a sports injury in July 2002.  This was initially treated in a cast, but with persistent pain a ligament injury was identified (posterior deltoid by MRI).  In July 2003 (10 months before separation) he underwent a surgical repair.  An orthopedic entry in October (3 months after surgery) noted persistent pain “especially when on feet long periods of time.”  Post-operative STR entries documented improving ankle range of motion (ROM), with dorsiflexion ranging from 5 to 10 degrees (normal 20) and plantar flexion consistently measured at 40 degrees (normal 45).  Other than early post-operative notes, there was no documentation of dorsiflexion more limited than the above until the NARSUM and VA examinations which follow.  There was STR confirmation of joint stability; and, there were no entries that documented severe functional impairment, any additional VASRD-ratable findings, or any separate foot diagnosis linked to a specific VASRD code.

The 5 March 2004 NARSUM examination, 3 months prior to separation, documented constant pain rated “slight and intermittent” that limited walking “for more than short distances” or standing “greater than 15-20 minutes” and prohibited running and multiple general soldiering requirements.  The physical examination recorded a “moderate” joint effusion and stability to stress testing (specifically verifying a tight deltoid ligament).  Measured ROM was minus 5 degrees dorsiflexion (inability to straighten foot to neutral position) and plantar flexion to 50 degrees, without addressing painful motion.

The 3 May 2004 VA Compensation and Pension (C&P) joint examination, less than a month before separation, documented constant unquantified pain that did not limit daily activities other than recreational activities, but “may potentially interfere with forms of occupation requiring vigorous physical activity.”  The physical examination recorded an antalgic gait (no brace or assistive device) and medial ankle tenderness without noting any additional findings.  Measured ROM was 0 degrees dorsiflexion and 45 degrees plantar flexion, specifying painful motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating under code 5099-5003 (analogous to degenerative arthritis) referenced the Army Physical Disability Agency (USAPDA) pain policy.  The VA, based on the C&P evidence, conferred separate ratings of 20% under code 5271 (limitation of motion) and 10% under code 5284 (foot injuries, other).  The rating decision cited “marked” ROM limitation, the criterion for the highest 20% rating under code 5271.  The 10% criterion is “moderate” limitation.  The VA’s rating under code 5284 cited the 10% criterion of “moderate” disability, referencing “chronic postoperative pain” and “slightly antalgic” gait.  Code 5284 offers additional ratings of 20% for “moderately severe” and 30% for “severe” disability.

Members first agreed that although the PEB rating specified ankle and foot pain, there was no ratable foot disability in evidence for consideration of separate rating.  Members further questioned the grounds for the VA’s dual ratings.  There are no VASRD provisions, or other sanctions with respect to the ankle, for separate rating of limited motion and functional loss due to pain.  The panel therefore agreed that its recommendation should be confined to a single rating under the most favorable code.    

The PEB’s 0% rating was sanctioned by the USAPDA pain policy that does not accommodate VASRD §4.59 (painful motion), which members agreed was supported by the evidence (specified in C&P and not refuted by the service evidence); thus, a minimum 10% rating was supported under provisions of §4.59.  The PEB’s 0% rating was also in conflict with VASRD §4.7 (higher of two evaluations), given that the ROM limitation in evidence would reasonably satisfy at least the 10% criterion for code 5271 as above.  Members did agree, however, that a 20% rating under code 5271 for “marked” limitation was not sufficiently justified.  Severely restricted dorsiflexion was not a consistent finding, given the conflicting evidence from all STR entries preceding the NARSUM and C&P), and the more functionally critical plantar flexion (step off, propulsion, etc.) was intact.  

Given the degree of functional disability in evidence at separation, the panel considered whether a higher rating was justified (IAW VASRD §4.7) under a code rated strictly for the severity of disability.  That would include the VA’s code 5284 as elaborated above, as well as analogous rating under code 5283 (tarsal, or metatarsal bones, malunion of, or nonunion) or code 5262 (tibia and fibula, impairment of).  The rating scale for 5283 is identical to that for 5284 (above); although, the scale for 5262 is more generous, e.g., 20% for “moderate” and 30% for “marked” disability.  The panel agreed, however, that code 5283 was the most compliant with VASRD §4.20 (analogous ratings) given its anatomic specificity for the pathology in this case.  

If rating under code 5299-5283 were pursued, all members agreed that the 30% criterion for severe disability was not supported by the functional evidence. The NARSUM noted limitations of walking and standing, but the more temporally probative C&P evidence indicated that limitations were confined to fairly rigorous activities.  Although residual gait impairment was still present at separation, members concluded that the functional evidence was more consistent with moderate (10%) than with moderately severe (20%) disability.  The 5299-5283 coding option was thus not favorable over a 10% rating supported straightforwardly by limitation of motion and/or painful motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the left ankle (and foot) condition under code 5271.

BOARD FINDINGS:  In the matter of the left ankle (and foot) condition, the panel unanimously recommends a disability rating of 10%, 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 his prior medical separation:  
  
CONDITION	VASRD CODE	PERMANENT RATING	
Surgical Residuals of Left Ankle Injury	5271	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160523, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015281, 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