RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01394
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041001

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E5, Automated Logistics Specialist, medically separated for “chronic pain, right knee and ankle” with a disability rating of 0%.  

CI CONTENTION:  She requested review of her right ankle, right Achilles tendon, right knee, left shoulder, right hip, left hip, lumbar spine, leg and gout conditions.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040622	VARD - 20050810	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Knee and Ankle	5099-5003	0%	Arthritis, Right Knee	NA*	NSC	20041109and
20050711	
			Right Ankle Traumatic Arthritis, Talofibular Joint Effusion, Narrowing	NA*	NSC		
			Healed Fracture, Distal Right Tibia	5262**	10%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	
*Rating Decision portion of VARD indicating the rating code not available.  **Presumptive

ANALYSIS SUMMARY:  

Chronic Right Knee and Ankle Pain.  The PEB combined the right knee and ankle conditions under a single disability rating, coded 5099-5003 (degenerative arthritis), and rated 0% 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 right knee and ankle conditions are presented separately (with the ankle discussed first), with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

Chronic Right Ankle Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI fractured her right tibia and fibula on 4 May 2003 when a radiator fell on her right lower extremity (RLE) during a physical training drill.  This was treated surgically the same day with open reduction internal fixation with a long intramedullary rod.  Following recovery, she began rehabilitation but had persistent pain and duty limitations.  An MRI on 14 October 2003 showed a comminuted fracture of the distal right tibia without apparent complication, as well as a tear of the right talofibular ligament with associated abnormal joint fluid.  The ankle joint was otherwise normal.  

At the physical therapy appointment on 23 February 2004, 10 months after surgery and 9 months prior to separation, the CI reported swelling and pain (rated at 7/10) with exercise and activity; and shooting in nature along the posterior right ankle.  Right ankle range of motion (ROM) was dorsiflexion to 25 degrees (normal 20) and plantar flexion to 60 degrees (normal 45); painful motion was not recorded.  A bone scan on 12 April 2004 showed non-specific uptake of the ankle, tibia and fibula, and knee consistent with a healing fracture or post-surgical changes.  

During the 7 June 2004 MEB NARSUM, 3 months before separation, the CI reported continued right ankle pain with periodic swelling and knee pain that radiated down to the leg and ankle.  She was working at a desk job and not doing her military specialty duties or physical training/testing.  Physical examination showed a slight antalgic gait for which she used a cane to walk comfortably.  She had difficulty walking on her right foot, toes, and heel due to pain, and there was slight tenderness over the right ankle.  The provider did not comment on motor loss, but noted no atrophy or sensory abnormality.  Right ankle ROM showed 15 degrees dorsiflexion and 20 degree plantar flexion compared to the left side with 10 degrees dorsiflexion and 25 degrees plantar flexion.  

A MEB NARSUM addendum the next day, documented continued pain in the lateral aspect of the right ankle and at the fracture site, use of a cane, and walking distance limited to a quarter mile.  Physical examination showed an antalgic gate and tenderness along the tibiotalar joint and peroneal tendons.  Right ankle ROM was 5 degrees dorsiflexion and 40 degrees plantar flexion.  No comment was made on painful motion or motor function.  

There was one VA Compensation and Pension (C&P) examination in evidence, dated 11 July 2005, 9 months after separation; however, the findings from another VA examination done on 9 November 2004, 1 month after separation, were detailed in the narrative of the VA Rating Decision (VARD), dated 10 August 2005.  At these examinations, the CI reported daily right ankle swelling and aching.  Physical examination in November 2004 revealed a protective gait of the RLE and swelling.  The right ankle was stable with ROM of 20 degrees dorsiflexion and 40 degrees plantar flexion.   X-rays indicated a normal right ankle and healed tibia fracture.  The final diagnosis was “normal right ankle with slight swelling, old fracture of distal tibia.”  The July 2005 examination noted “favoring of the right leg during her gait” and mild calf atrophy.  

The panel directed attention to its rating recommendation based on the above evidence, and first considered whether the right ankle was separately unfitting from the right knee.  Members observed that the CI fractured both bones of the lower leg, and that a bone scan did show non-specific RLE uptake including the knee and ankle.  The panel determined that the evidence was not sufficient to overcome a presumptive determination that the ankle was separately unfitting.  

As mentioned above, the PEB  rated the bundled right knee and ankle condition 0%, analogously coded 5099-5003, citing the US Army Physical Disability Agency pain policy (for slight/intermittent pain).  The VA did not service connect the right knee and ankle condition, but did rate “healed fracture, distal right tibia” 10%, citing tibia and fibula malnuion with slight knee or ankle disability (no assigned diagnostic code was in evidence, but the condition description applies to code 5262 (tibia and fibula, impairment of)).  Members first considered rating under code 5271 (ankle, limited motion of), and agreed that dorsiflexion measurements taken during the MEB examinations warranted at 10% rating for moderate limitation.  The panel noted that the language of code 5262 is specific for fracture complications, and though it offered the best fit with regard to the CI’s symptomatology and functional limitations, a tibia/fibula impairment was not noted to be medically unacceptable by the MEB nor unfitting by the PEB, and thus not within the panel’s scope of review.  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 right ankle pain condition, coded 5271.  

Chronic Right Knee Pain.  According to the STR and MEB NARSUM, the CI’s right knee condition also began in May 2003 after the radiator accident.  At the physical therapy visit on 23 February 2004, the CI reported pain and swelling with exercise and activity along the right anterior knee and had a limp.  

During the MEB NARSUM examination, the CI complained of continued right knee pain shooting down the leg and ankle, with periodic swelling as well as leg redness.  As noted above, the examiner recorded a slight antalgic gait aided by a cane.  Bilateral knee ROM measurements were 130 degrees flexion (normal 140) and 0 degrees extension (normal); painful motion was not recorded.  

The C&P examinations documented CI complaints of right knee swelling and giving way.  Physical examination revealed a protective gait of the RLE, knee swelling, and no instability.  Right knee ROM was 140 degrees flexion; painful motion was not recorded.  X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  As with the right ankle, the panel first determined that there was insufficient evidence to overcome a presumptive finding that the right knee was separately unfitting.  The PEB rated the bundled right knee and ankle condition 0%, analogously coded 5099-5003, citing the US Army Physical Disability Agency pain policy.  The VA did not service connect the right knee, but rated the tibia fibula impairment as discussed above.  Members noted that there was no evidence of painful motion with functional loss to support a 10% rating (based on §4.59, §4.40 and §4.45).  There likewise was no limitation of motion which attained a 10% rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under those codes.  The use of the code 5262 is not available to the panel, but if it were, it would have been already assigned for the ankle pain and not available for the knee IAW VASRD §4.14 (avoidance of pyramiding). No additional functional limitation was evidenced by the examinations for a rating higher than the 0% adjudicated by the PEB.  However, members agreed that code 5260 better characterized the impairment.  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 rating for the right knee condition, but recommends using code 5260.  

BOARD FINDINGS:  In the matter of the right ankle condition, the panel recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  In the matter of the right knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB rating of 0%, but recommends the use of code 5260.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Ankle Pain	5271	10%	
Chronic Right Knee Pain	5260	0%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161001, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180009119, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

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