RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00785
BRANCH OF SERVICE:  Air force	SEPARATION DATE:  20040316

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects  this covered individual (CI) was an active duty E-5, Missile and Space Facilities Craftsman, medically separated for “right ankle pain” with a disability rating of 10%.   

CI CONTENTION:  The right ankle should be rated for pain, instability and nerve damage.  The plantar fasciitis should also be rated.  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 it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040217	VARD - 20041105	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Pain	5271	10%	Right Ankle Instability	5271	10%	20040517	
			Sural Neuropathy, Right Ankle 	8257	0%	20040517	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20% 	

ANALYSIS SUMMARY:  

Right Ankle Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent surgical intervention for ankle instability in November 1998 followed by posterior tibial tendon debridement and calcaneal osteotomy in December 2000.  She subsequently developed sural nerve entrapment and underwent a nerve release procedure in January 2003.  Subsequent STR entries documented persistent pain, chiefly in the lateral ankle, but with some radiation and sensory symptoms in the lateral foot.  Electro-diagnostic testing confirmed a “very mild” sural neuropathy at ankle level.  There was STR confirmation of a normal gait with no contrary evidence.   Orthopedics documented “good” range of motion (ROM) and physiatry documented “adequate and normal” ROM except for a lack of dorsiflexion of about 5 degrees (normal 20).  The physiatrist noted “troublesome” limitations with prolonged standing.  A comprehensive functional assessment on 11 November 2003 (4 months before separation) recorded dorsiflexion of 15 degrees and plantar flexion “within normal limits.”  The examiner noted the CI could negotiate crouching, lifting from floor level, and climbing step ladder and stairs, albeit with “discomfort;” and, opined the CI “demonstrates physical abilities between the light and medium category.”  

The 22 January 2004 MEB NARSUM examination, 2 months prior to separation, noted complaints of significant pain in the right foot and lateral aspect of the ankle with “tingling in the lateral aspect of her foot.”  The physical examination recorded normal alignment, well healed surgical scars, and “good” ROM.  The NARSUM diagnoses were “possible continued sural nerve involvement” and “possible [subtalar] degenerative arthritis.”

The 17 May 2004 VA Compensation and Pension (C&P) evaluation, 2 months after separation, recorded 3-4/10 pain on good days and 7-8/10 at worst (1-2 times a week).  The examiner noted numbness in the lateral toes, but did not comment on foot pain.  The documented functional limitations were lifting over 20 pounds, negotiating stairs, prolonged walking, and various sports activities.  The physical examination recorded ankle tenderness, some weakness with plantar and dorsiflexion (contrary to several service examiners and anatomically unrelated to the sural nerve pathology), and some fine sensory deficits in the lateral toes.  There was no comment regarding gait or joint instability.  Documented ankle ROM was dorsiflexion of 18 degrees and plantar flexion of 20 degrees (normal 45), the latter was characterized as “the point of pain” and suggesting full excursion was not attempted.  

The panel directed attention to its rating recommendation based on the above evidence.  Members first noted the NARSUM specified separate nerve and joint diagnoses, and the MEB submission was “chronic right ankle and foot pain; [status-post] multiple surgeries.”  Members agreed the forwarded condition logically subsumed the neuropathy, which in turn was subsumed by the PEB adjudication for joint pain.  The panel thus concluded the neuropathy was within its scope of review (as defined above) and merited consideration for separate rating.  

The PEB’s 10% rating under code 5271 (limitation of motion) did not cite a rationale, but the applicable VASRD §4.71a criterion is “moderate” limitation.  The highest rating under 5271 is 20% for “marked” limitation.  The VA, based on the C&P evidence, conferred a 10% rating under 5271 citing the applicable criterion.  The VA conferred an additional rating of 0% for the associated sural neuropathy under code 8527 for the internal saphenous nerve that specifies a 0% rating for “mild to moderate” impairment.  In that regard, the panel notes the affected sural nerve is not anatomically part of the internal saphenous distribution.  It is a merged branching derivative of the common peroneal and posterior tibial nerves, each of which confers a 10% rating for “mild” impairment (at the nerve root level).

The panel first deliberated whether a separate nerve rating by the service could be recommended.  Members agreed, however, this could not be justified.  The localized foot pain due to sural nerve damage appeared to contribute very little to the overall unfitting pain that was rated by the PEB under the ankle code, and extrapolating a separate nerve rating would push hard against VASRD §4.14 (avoidance of pyramiding).  Additionally it was difficult to reasonably justify the nerve condition as separately unfitting.  Any separate pain that might be speculatively attributed to the nerve would not have been likely to render the CI unfit, and the sensory impairment was of no functional consequence.  Finally, even if both of the above issues were conceded in the CI’s favor, it would be difficult to justify even a minimum 10% rating for the nerve condition in light of the VASRD constraints and anatomical facts elaborated above.  

Having agreed a separate nerve rating was not justified, the panel turned to deliberating the rating for the ankle joint.  Given the absence of ankylosis or fracture with nonunion or malunion, there is no applicable joint code which would yield a rating higher than the PEB’s 10%.  Members agreed that the higher 20% rating under code 5271 (as above) was not supported by the ROM evidence.  The panel also considered an analogous rating under code 5299-5262 (tibia and fibula, impairment of) which offers ratings for contiguous ankle disability: 20% for “moderate” and 30% for “marked.”  However members agreed the analogous application of this fracture code (with no fracture present) was not sufficiently justified by VASRD §4.20 (analogous ratings) in a case such as this which satisfies compensable criteria under more applicable joint codes.  Members further agreed that, even if the code were conceded, it would not be advantageous since the functional limitations in evidence at separation were not convincingly characterized as moderate disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication of the right ankle condition.

BOARD FINDINGS:  In the matter of the right ankle condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160916, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2016-00785.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings