RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01785
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20040220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Motor Transport Operator, medically separated for “chronic pain, left ankle and bilateral knees” with a disability rating of 0%.

CI CONTENTION:  Bilateral ankle and knee 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 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 - 20031210	VARD - 20040916	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Ankle and Bilateral Knees	5099-5003	0%	Post-operative Residuals of Tendon Injury and Retinaculum Tear of the Left Ankle	5271	10%	20040412	
			Left Patellofemoral Stress Syndrome	5260	10%	20040412	
			Right Patellofemoral Stress Syndrome	5260	10%	20040412	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Chronic Pain, Left Ankle and Bilateral Knees.  The PEB combined the left ankle and left and right knee conditions under a single disability rating, coded analogously to 5003 and rated 0% with application of the US Army Physical Disability Agency pain policy.  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 left ankle is presented separately, however, the evidence for the left and right knee conditions is presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

Chronic Left Ankle Pain:  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent left ankle reconstruction for repair of ligamentous instability (Chrisman-Snook surgery) in August 2003.  A 24 September 2003 follow-up visit showed ankle ROM of dorsiflexion (DF) to 5 degrees (normal 20) and plantar flexion (PF) to 25 degrees (normal 45).  Ankle X-rays the same day showed post-operative changes (drill holes in the fibula), but were otherwise unremarkable.  At the 20 October 2003 orthopedic evaluation the CI reported hypersensitivity of the dorsolateral aspect of the ankle.  Physical examination showed a tender, well-healed incision.  There was hypersensitivity of the dorsum of the foot and tenderness of the anterior talofibular ligament.  Left ankle ROM was DF of 5 degrees and PF of 30 degrees.  The 24 October 2003 MEB NARSUM, 4 months prior to separation, noted the same complaints and physical findings as the 20 October 2003 orthopedic evaluation summarized above.  

According to the 1 November 2003 commander’s statement, the CI was unable to perform her military duties because of her left ankle injury.  The 4 November 2003 permanent L3 profile listed left ankle pain and bilateral knee pain.  Duty limitations included “no running, jumping, ruck, push-ups, lifting or marching.”  The MEB found the left ankle condition failed retention standards.  During the 5 November 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported numbness and tingling of the left ankle and foot.  Physical examination showed 4/5 weakness of the left ankle.  The 8 December 2003 MEB addendum, 2 months prior to separation, showed left ankle DF of 5 degrees, PF of 40 degrees.  Painful motion was not addressed.  During the 30 January 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 1 month prior to separation, physical examination showed “decreased” left ankle ROM and numbness over the surgical scar.  

At the 12 April 2004 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported chronic left ankle pain with toe numbness.  The CI also reported popping and warmth in the joint with decreased ROM.  Ankle X-rays showed postoperative changes (lucency in the distal fibula), but no evidence of fractures.  Physical examination showed a “marked” limp favoring the left ankle.  There was decreased sensation over the lateral left ankle to the great toe.  There was mild diffuse tenderness, without swelling.  Ankle ROM was DF of 15 degrees and PF of 35 degrees.  There was “painless ROM of the foot on both sides,” but there was terminal pain with inversion and eversion noted.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bundled left ankle, left knee and right knee conditions 0%, as reviewed above.  The VA rated the left ankle condition 10%, coded 5271, (ankle limitation of motion), based on the C&P examination 2 months after separation, citing moderate limited motion of the ankle or functional impairment due to painful motion.

The panel first considered if the left ankle condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The left ankle condition was profiled, implicated by the commander’s statement, and judged to fail retention standards.  
The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled left ankle condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting left ankle condition at the time of separation.  The panel agreed that the ROM examinations proximate to separation were consistent with the “moderate” limitation of motion required for the 10% rating under this code and no higher, additionally supported by the presence of an abnormal gait and painful motion noted at the VA examination.  The panel considered alternative VASRD ankle and analogous codes, but all were less applicable and/or not advantageous to rating.  There was therefore no higher than a 10% rating supported for the left ankle under any applicable code.  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 condition, coded 5271.  

Bilateral Knee Pain.  According to the STR and the MEB NARSUM, the CI underwent left knee arthroscopy in 1999.  The 22 July 1999 operative report indicated that that a medial plica was excised.  The CI reported her right knee became symptomatic due to overcompensation.  At a post-operative follow-up visit in August 1999, the CI reported she was doing well.  There were no other treatment notes regarding either knee in the STR following the left knee surgery until the orthopedic visit on 20 October 2003 where the CI reported left knee swelling with running and swelling in the right knee due to overcompensation for the left knee.  The CI reported knee pain with sitting for long periods (positive theater sign).  She denied any pain with stairs, but reported pain with lunges.  Physical examination of the bilateral knees showed no effusions and full ROM bilaterally.  There was tenderness of the right medial joint line, without evidence of instability.  The 24 October 2003 MEB NARSUM noted the same complaints and physical findings as the 20 October 2003 orthopedic evaluation summarized above.  

According to the 1 November 2003 commander’s statement, neither of the knees were implicated as impairing the CI’s duty performance.  However, the 4 November 2003 profile listed bilateral knee pain and the MEB found the bilateral knee pain to fail retention standards.  During the 5 November 2003 MEB examination the CI reported swelling of the knees with exertion and use of a brace for physical exertion.  Physical examination did not note any findings for the knees.  The 30 January 2004 MEB examination, 1 month prior to separation, noted no findings for either knee.  

At the 12 April 2004 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported using an elastic brace on both knees to keep her patella in place when doing long walks.  She stated that she had problems standing up from sitting on the floor and could not do as much weight lifting, or exercises such as the stair stepper or jump rope due to her knee and left ankle pain.  Physical examination showed a limp favoring the left ankle.  There was left quadriceps weakness compared to the right, graded 4.5/5.  Bilaterally, there was no tenderness, swelling, increased warmth, deformity, joint line tenderness or ligamentous instability and provocative testing to detect meniscal pathology was negative.  Bilateral knee ROM was 140 degrees of flexion and 0 degrees of extension, with painless motion bilaterally.  Right knee X-rays showed a small joint effusion, but were otherwise normal.  Left knee X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bundled left ankle, left knee and right knee conditions 0%, as reviewed above.  The VA rated the left knee and right knee at 10% each, both coded 5260 (limitation of leg flexion), based on the C&P examination citing long term knee problems and evidence of effusion of the right knee and minimal reduction in strength of the left leg.  

The panel first considered if the bilateral knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The bilateral knee condition was profiled and judged to fail retention standards.  However, the commander’s statement implicated only the left ankle, status post surgery (August 2003) as impairing the CI’s duty performance.  The panel considered that the L3 profile for the ankle would have obscured a lesser profile for the knees.  Prior to the orthopedic referral for MEB, there were no STR entries for the right knee and no treatment records were available for left knee after August 1999 (post-operative visits for the left knee surgery).  There was no performance based evidence in record that either knee interfered with satisfactory duty performance at separation. According to DoDI 1332.38, adequate performance until referral into the disability process for another condition provides support for a finding of fitness, even if the condition may preclude continued service in the military.  The panel concluded there was a preponderance of evidence against recommending either knee as unfitting at separation and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the left ankle and bilateral knee condition, the panel unanimously recommends a disability rating as follows: an unfitting left ankle condition rated 10%, coded 5271 IAW VASRD §4.71a and not unfitting left and right knee conditions.

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	
Left Ankle Pain	5271	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161123, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180002675, 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