RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01584
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Dental Specialist, medically separated for “bilateral ankle pain” with a disability rating of 0%.   

CI CONTENTION:  Disabled joint review requested. 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 at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  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 - 20031107	VARD - 20041229	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Pain	5099-5003	0%	Residuals Reconstruction S/P Right Ankle	5270	30%	20040501	
			Left Ankle Condition	5271	0%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Bilateral Ankle Pain.  The PEB combined the bilateral ankle pain conditions as a single unfitting condition coded analogously to 5003 and rated at 0%.  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 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 a 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 each ankle condition is presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Right Ankle.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI, while stationed overseas in 2001, developed recurrent bilateral ankle instability with multiple ankle sprains. He underwent right ankle ligament stabilization surgery (Brostrom procedure) on 3 October 2001 with a subsequent debridement surgery on 31 October 2001, and hardware removal surgery on 16 April 2003.  At an orthopedic appointment on 6 May 2003, 2 weeks after his third surgery and 10 months prior to separation, the CI reported constant right ankle pain and the need to utilize an ambulatory boot and crutches.  On physical examination (PE), ankle range of motion (ROM) was decreased noting dorsiflexion of 5 degrees (normal 20) and plantar flexion of 35 degrees (normal 40). 

At the 2 June 2003 MEB NARSUM examination, 9 months prior to separation, the CI endorsed marked pain about the outside aspect of his right ankle.  His PE revealed a normal gait and a tender right ankle.  Ankle stabilization maneuvers were negative, denoting no instability.  ROM measured 15 degrees of dorsiflexion and 35 degrees of plantar flexion which was an overall improvement from one month prior.  The examiner noted, “He has a 50% loss of inversion due to the operation, which is the intended result.”  X-ray studies noted an “unremarkable ankle and subtalar joint.”  

A 1 June 2003 profile for ‘right ankle s/p [status post] reconstruction; left ankle instability” did not include recommended duty limitations but specified no running or jumping.  According to the commander’s statement dated 9 June 2003, 9 months prior to separation, the CI was unable to stand or walk for any period of time without feeling pain. While current duty requirements could be met “as a chair side dental assistant without impediment…his condition would prevent him from performing future NCO duties successfully.” 

At the 1 May 2004 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported continued right ankle pain and nighttime swelling.  His PE revealed ROM measurements of 0 degrees dorsiflexion and 35 degrees plantar flexion.  Painful motion was present when performing stability maneuvers, which were normal.   Lateral tenderness about the right ankle remained.  There was no evidence of an abnormal gait or use of assisted devices.  There were no further limitations due to weakness, fatigability, incoordination, or flare-ups.  There was no effect on his usual occupation, and no incapacitating episodes.    

Directing attention to its recommendations, the panel first considered if the right ankle pain condition met the panel’s threshold for separate rating (as elaborated above).  The panel concluded there was not a preponderance of evidence in the STR which overcame the panel’s presumption that the bundled right ankle condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right ankle condition at the time of separation.

The PEB rated the bilateral ankle condition at 0%, analogously coded 5003 (arthritis, degenerative), citing ROMs within acceptable parameters, no focal neurovascular deficits, and no medication.  The VA rated the right ankle condition at 30%, coded 5270 (ankle, ankylosis), based on the C&P examination 2 months after separation, citing ankylosis with plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees.  

Panel members considered the somewhat conflicting examination reports of right ankle ROM measurements noting the vacillation in ankle dorsiflexion from 5 degrees to an improved 15 degrees and then down to 0 degrees (VA) within a 12-month period near the time of separation.  There was no record of recurrent injury or other development explaining the more marked impairment reflected by the VA measurements.  While ROM limitations may have progressed over time, there was no evidence in the record from which to conclude that the severity near separation approached that portrayed by the VA measurements.  Members agreed the MEB examination was more consistent with the overall STR and more reflective of the anticipated severity based on the clinical pathology and the surgical correction.  The panel therefore relied more heavily on the MEB examination ROM measurements.  Panel members concluded that although both dorsiflexion and plantar flexion of the right ankle were near normal at the time of the MEB, the slight decrease in both parameters coupled with the evidence of painful motion at the less probative VA examination would support the maximum of 10% impairment based either upon “moderate” limitation of ankle motion (5271) or that under VASRD §4.59 (painful motion).  

Left Ankle. According to the MEB NARSUM, the CI’s recurrent bilateral ankle instability was considered greater on the right than the left.  There was scant evidence in the STR for the left ankle condition.  However, there were ROM measurements taken at the MEB NARSUM on 2 June 2003 which were the same for both ankles and noted dorsiflexion of 15 degrees and plantar flexion of 35 degrees.  This ROM remained the same for the left ankle 11 months later at the VA examination.  Furthermore, the VA examiner reported good stability and normal X-rays of the left ankle.   

The panel then considered if the left ankle condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The panel could not find evidence in the commander’s statement or elsewhere in the STR that indicated any significant interference of painful motion or debilitating arthritis with the performance of duties, nor were any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability.  Therefore, the panel concluded that the preponderance of evidence showed the left ankle condition would not reasonably have caused the CI to be referred into the DES or be found unfit solely due to the left ankle condition.  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 condition, coded 5003, and adjudication of the left ankle condition as not unfitting.

BOARD FINDINGS:  In the matter of the bilateral ankle condition, the panel unanimously recommends it be adjudicated for two separate conditions:  In the matter of the right ankle condition, the panel unanimously recommends a separately unfit determination with a disability rating of 10%, coded 5003.  In the matter of the left ankle condition, the panel unanimously agrees that it cannot recommend a finding of unfit for an additional disability rating.  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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Ankle Pain 	5003	10%	
Left Ankle Pain	Not Unfitting	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161020, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170019698, 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