RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00651
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041206

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Indirect Fire Infantryman, medically separated for “low back pain,” “bilateral ankle pain” and “chronic left hip pain,” rated at 10%, 0% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “Lumbar strain, L & R sciatic nerve radiculopathy, migraines, lumbar strain L5-S1, left ankle strain.”  The CI’s 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 - 20041102	VARD - 20051130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical Low Back Pain	5239	10%	Lumbar Strain with Spondylolisthesis, L5-S1	5237-5239	10%	20050928	
Bilateral Ankle Pain	5099-5003	0%	
Chronic Left Ankle Strain, S/P Calcaneal Osteotomy  
	5271	10%	20050914	
			Right Ankle Strain 	5271	NSC	20050914	
Chronic Left Hip Pain	5099-5003	0%	Left Hip Strain	5299-5250	NSC	20050928	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	0%	20050914	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Mechanical Low Back Pain.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in 1998 after a faulty parachute deployment.  A note dated 3 April 2003 indicated the CI had lower back pain for 1 day in the absence of any trauma, although while deployed the CI wore a combat load with an interceptor vest and significant activity caused a significant increase in pain.  On 15 July 2004, X-rays dated demonstrated a very mild grade 1 spondylolisthesis (one vertebra lying forward of the one below it) of L5 on S1 with possible pars defects (breaks in the intervertebral arch) along with narrowing of the disc space at L5-S1.  The CI underwent six treatments of IFC (interferential current) with MCP (moist cold pack) with stiffness afterwards and took Flexeril (cyclobenzaprine, a muscle relaxer).  A trial with a TENS [transcutaneous electrical nerve stimulation] unit for pain was instituted.  A note dated 9 August 2004 indicated the back pain, described as “constant throbbing” with “twisting or bending” occasionally radiated down the left leg; however, he had no bowel, bladder, or sexual function problems.  He noted some weakness in both legs without tingling or numbness. On examination his back had normal alignment and no scoliosis.  His gait and tandem gait were normal except for walking with foot splints.

During the 23 August 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported back pain.  Physical examination showed muscle spasm of the right paralumbar area.  The 16 September 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of low back pain.  Physical examination showed a normal gait with muscle spasms on the right paralumbar area, but none on the left.  Straight leg raising (to determine nerve root irritation) was negative.  Range of motion (ROM) measurements of the thoracolumbar spine showed flexion 90 degrees (normal 90), extension 35 degrees (normal 30), lateral bending to the right 35 degrees (normal 30) and to the left 36 degrees (normal 30),  rotation to the right 45 degrees (normal 30), and to the left 48 degrees (normal 30).  Reflexes were 2+ bilaterally.  

At the 14 September 2005 VA Compensation and Pension (C&P) evaluation, 9 months after separation, the CI reported chronic painful flare ups in the low back every 2 weeks, which lasted for 1½ to 2 weeks per episode.  He lost about 4 days of work in the prior year, but he had no prescribed incapacitation because of his back.  Physical examination showed no abnormal curvatures or spasm.  There was no tenderness on firm palpation.  Neurologic evaluation was unremarkable.  Straight leg raising was negative.  ROM of the lumbar spine flexion was 115 degrees with mild low back pain at 55 degrees.  Extension was to 145 degrees with pain at 30 degrees.  Right and left lateral flexion were 40 each with pain at 30 degrees to the right, but no pain to the left.  Right and left rotation were both performed beyond 30 degrees with mild pain to the right and no pain to the left.  The CI noted he had always been extremely flexible.  There was no limitation of motion on repetition.  X-rays dated 28 September 2005 demonstrated grade 1 spondylolisthesis at L5-S1 with a suggestion of spondylolysis (a defect or stress fracture in the par interarticularis) at L-5.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the mechanical low back pain condition 10%, coded 5239 (spondylolisthesis or segmental instability), citing spasm of the paraspinous muscles without deformity.  The VA also rated the lumbar strain with spondylolisthesis L5-S1 condition 10%, coded 5237-5239 (lumbosacral strain-spondylolisthesis or segmental instability), based on the VA C&P examination 9 months after separation, citing painful motion and X-ray evidence of degenerative disk disease.  
  
Although there was insufficient limitation of motion to support a minimum rating, the panel agreed a 10% rating was justified for the presence of painful motion and spasm.  However, there was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  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 mechanical low back pain condition.  

Bilateral Ankle Pain.  According to the STR and MEB NARSUM, the CI’s bilateral ankle pain condition began in 1998 after a faulty parachute deployment.  As a result he had a collapse of the arch of the left foot and underwent a left calcaneal Evan osteotomy in October 1998.  While deployed he had severe pain in his left ankle.  On 25 July 2003 the CI complained of left ankle pain for 7 days after dismounting a track.  On 31 July 2003 he was given piroxicam (a nonsteroidal anti-inflammatory drug (NSAID)) and exercises for the ankle pain.  In December 2003 the CI reported a constant throbbing of the ankle and he was treated with Vioxx (rofecoxib, an NSAID) and rest, ice, compression, and elevation.  Within a month the CI still had pain, but felt much better with taking the Vioxx.  The CI was seen in the Emergency Room on 18 June 2004 after twisting his right ankle.  Treatment consisted of Motrin (ibuprofen, an NSAID) and a profile.  At a physical therapy visit on 2 August 2004 he had a non-antalgic gait when moving slowly and an altered gait when speed increased.  An ASO brace was given for the right ankle as well as exercises for both ankles.  A note dated 9 August 2004 indicated the CI wore ankle braces all the time, which helped with the pain.  Sometimes the right ankle hurt more than the left and sometimes vice versa.  Standing greater than 10 to 15 minutes or walking in boots exacerbated the pain.  Repeat surgery was offered by podiatry, but the CI refused. 

At the 23 August 2004 MEB examination the CI reported surgery on the left ankle and numbness of the left ankle.  Physical examination showed a well-healed scar of the left foot.  The 14 September 2004 MEB NARSUM examination noted complaints of bilateral ankle pain, the left more frequently than the right.  Physical examination showed a well-healed scar on the left ankle.  Gait was normal.  ROM measurements for dorsiflexion were 20 degrees (normal 20) right and 16 degrees left.  Plantar flexion on the right was 50 degrees (normal 45) and 46 degrees left.  Inversion was 39 degrees (normal 30) right and 39 degrees left and eversion was 23 degrees (normal 20) right and 20 degrees left. He had a little bit of swelling and tenderness at the lateral aspect of the left ankle just inferior to the lateral malleolus.  The right ankle was not tender.  He had a stable anterior drawer and talar tilt tests.  

At the 14 September 2005 C&P evaluation the CI reported pain in the anterolateral aspect of the left ankle, which was worse in cold weather.  Over-the-counter shoe inserts gave him some relief of the ankle pain and he used ankle braces as needed primarily during the winter months.  The right ankle hurt only when the left ankle increased in pain during cold weather.  Physical examination showed the CI walked with a normal gait with no evidence of a limp or gait dysfunction and he used no assistive devices.  There was no edema or effusion present in either ankle.  The right ankle was nontender and was not unstable.  The left ankle had a 6.5 cm surgical scar on the anterolateral aspect below the lateral malleolus.  There was tenderness over the scar with subjective numbness over the lateral aspect of the left foot.  There was no instability of the left foot.  Right ankle dorsiflexion was 20 degrees and plantar flexion 50 degrees with no pain in either direction.  The left ankle dorsiflexed to 15 degrees with pain that began at 10 degrees and plantar flexion to 38 degrees with no pain.  X-rays of the ankles dated 14 September 2005 showed no fracture, dislocation or arthritic changes.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral ankle pain condition 0%, coded 5099-5003 (arthritis, degenerative), citing due to trauma status post calcaneal osteotomy without loss of joint motion.  The VA rated the chronic left ankle strain status post calcaneal osteotomy condition 10% coded 5271 (ankle, limited motion of), based on the C&P examination citing pain at 10 degrees dorsiflexion.  The VA also rated scars, residuals of left calcaneal osteotomy 10%, coded 7804 (scar(s), unstable or painful); however, the scars are not in the scope of review.  The VA determined the right ankle strain was not service-connected, coded 5271, citing medical evidence of record failed to show a chronic disability.
The PEB combined the bilateral ankle pain conditions as a single unfitting condition coded 5099-5003 and rated 0%. The approach by the PEB commonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The panel’s initial charge in this case was 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 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 bilateral ankle pain conditions was presented together above.  In this case, a bilateral condition was in the profile, and the bilateral ankle pain condition was implicated by the NARSUM and in the commander’s statement.  Members agreed that each ankle condition is separately unfitting.  Members first discussed the left ankle pain, which as a result of a hard landing, the CI underwent an osteotomy.  Although the CI had a full ROM on several examinations proximate to separation, at the NARSUM examination he was noted to have a little bit of swelling and tenderness at the lateral aspect of the left ankle just inferior to the lateral malleolus.  Therefore, use of code 5099-5003 at 10% is not unreasonable because of the swelling in the absence of compensable limitation of motion.  The right ankle, on the other hand, had a full ROM, but no evidence of swelling, muscle spasm, or satisfactory of painful motion nor evidence of X-ray evidence of involvement.  Therefore, a 0% rating is appropriate for the right ankle pain.  There was no route to a higher rating in the absence of ankle ankylosis or subastragalar or tarsal joint ankylosis (codes 5270 or 5272), malunion of os calcis or astragalus (code 5273), or having undergone an astragalectomy (code 5274).  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 pain condition, coded 5099-5003 and a disability rating of 0% for the right ankle pain condition, coded 5099.  

Chronic Left Hip Pain.  According to the STR and MEB NARSUM, the CI’s chronic left hip pain condition began in 1998 after a faulty parachute deployment.  The CI had pain in the left hip, which was usually better over the weekend, but much worse during the work week.  X-rays dated 15 July 2004, ordered for a history of bilateral hip pain, were unremarkable.  A note dated 9 August 2004 indicated inactivity made the hip pain better and walking and running exacerbated the pain.  At a physical therapy session, the CI complained of hip pain and requested not to ride the bike.  

During the 23 August 2004 MEB examination the CI did not report anything related to the left hip.  The examiner likewise recorded nothing related to the left hip in the clinical evaluation, but listed left hip pain in the summary of defects and diagnoses.  The 20 September 2004 MEB NARSUM examination noted the complaint of left hip pain.  The physical examination did not address the left hip.

At the 14 September 2005 C&P evaluation the CI reported chronic left hip pain.  The left hip was characterized by flare ups during the winter months when his left ankle was at its worst.  The CI stated the left hip pain was generally 4-5/10 (10 being the worst pain); however, at the examination it was 0/10.  Physical examination showed normal light touch sensation in the lower extremities and no distal motor weakness.  There was no tenderness on firm palpation.  Flexion was to 120 degrees (normal 125) without pain and abduction was to 45 degrees (normal 45) also without pain.  The CI was able to do a full squat and rise without difficulty.  Employment and activities of daily living were not affected by the left hip pain.  X-rays of the left hip, ordered for a history of recurrent subluxation of the left hip, were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic left hip pain condition 0%, coded 5099-5003 (arthritis, degenerative), citing no significant loss of joint motion and rated for pain-slight, intermittent.  The VA determined the left hip strain condition to be not service connected, coded 5299-5250 (hip ankylosis), based on the C&P examination 9 months after separation, citing the medical evidence of record failed to show that the disability had been clinically diagnosed with a normal examination.  Panel members noted that clinical evidence for the left hip pain was very limited and ROM measurements prior to separation were not in the STR, while VA ROM measurements, albeit 9 months after separation, were within normal limits.  Furthermore, despite ongoing physical therapy for the CI’s back condition, only one note physical therapy even addressed the left hip pain.  Furthermore, X-ray studies both pre-separation and post-separation were normal, thereby precluding use of codes 5250 (hip ankylosis), 5254 (hip flail joint), and 5255 (femur impairment).  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 left hip pain condition.

Contended PEB Condition:  Migraine Headaches.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  The CI had a history of migraine headaches since the head injury he suffered during that parachute jump in April 1988.  He was getting excellent relief with Zomig (zolmitriptan).  At the VA examination, 9 months post-separation, he indicated the pain began with a plugged sinus.  The headache initially occurred once a month and continued until he took the medication.   Frequency increased to one or more times a week.  Headache relief was obtained by resting in a dark, quite place, free from noise or light.  The headache was quickly relieved by the zolmitriptan.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition; and so, no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the mechanical low back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the left ankle pain condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the right ankle pain condition, the panel unanimously recommends a disability rating of 0%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left hip pain condition and IAW VASRD §4.71a, the panel unanimously or majority recommends no change in the PEB adjudication.  In the matter of the contended migraine headaches condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There were 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	
Mechanical Low Back Pain	5239	10%	
Bilateral Ankle Pain, Left Ankle	5099-5003	10%	
Bilateral Ankle Pain, Right Ankle	5099-5003	0%	
Chronic Left Hip Pain	5099-5003	0%	
COMBINED	20%	
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170016338, 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