RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02056
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070209

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

CI CONTENTION:  No specific contention made.  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 - 20061201	VARD - 20080702	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain in the Right Ankle, Right Knee and Back	5099-5003	0%	Status Post Right Knee Trauma	5257	30%	20080406	
			Degenerative Joint Disease, Right Ankle	5010-5271	20%	20080406	
			Back Disorder	5243	NSC	20080406	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Right Ankle Pain: The PEB combined the right ankle, right knee and back conditions under a single disability rating, analogously coded 5003 (degenerative arthritis) 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’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 ankle, right knee and back conditions is presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s right ankle condition began in September 2003, after his right leg slipped out of the door of a tactical vehicle while the vehicle was moving and his leg struck an obstacle during active combat.    

The 15 February 2006 MEB NARSUM examination, 12 months before separation, noted complaints of right ankle pain of 8/10 with frequent swelling and constant give-way.  Physical examination showed a right ankle ROM of 10 degrees dorsiflexion (normal 20) and 45 degrees of plantar flexion (normal).  There was some diffuse soreness with manipulation, but no instability.  During the 8 August 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months before separation, the CI reported right ankle pain.  Physical examination revealed tenderness in the lateral malleolar area.  The 8 August 2006 orthopedic ROM evaluation showed right ankle dorsiflexion of 10 degrees and plantar flexion of 45 degrees.  

At the 6 April 2008 VA Compensation and Pension (C&P) evaluation, 14 months after separation, the CI reported intermittent 4-5/10 pain with occasional swelling.  The ROM evaluation of the right ankle showed 10 degrees of dorsiflexion without pain and 40 degrees of plantar flexion with pain at the end range.  He had a negative anterior drawer test.  

Panel members agreed that the evidence reasonably justified that the functional limitations of the right ankle condition contributed to the CI’s inability to perform his military duties and accordingly a separate disability rating is recommended.  The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the right ankle condition 20%, dual coded 5010-5271 (traumatic arthritis causing limited motion of the ankle) based on the C&P examination, citing marked limited motion of the ankle.  The panel agreed that the NARSUM, orthopedic and C&P examinations were consistent with “moderate” limitation of motion for a 10% rating under code 5271.  Because there was no ankylosis, nonunion or malunion, VASRD §4.71a offers no applicable joint code which would yield a higher rating.  The panel also considered whether rating under the VASRD code for other foot injuries (5284) provided for a higher rating; however, panel members agreed that the “severe” level (30%) was not supported.  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 5271.  

Chronic Right Knee Pain: According to the STR and MEB NARSUM, the CI’s right knee condition began at the same time and under the same circumstances as the right ankle.  An MRI of the right knee revealed a fairly high-grade medial collateral ligamentous sprain and a posterior horn medial meniscus tear.  In December 2003, he underwent arthroscopic surgery on his right knee for reconstruction of the anterior cruciate ligament and medial cruciate ligament and debridement of the medial meniscus.  

During the MEB NARSUM examination, the CI complained of constant 8/10 right knee pain, swelling and give-way.  Physical examination showed right knee flexion of 125 degrees (normal 140) and extension was 0 degrees (normal).  There was no effusion or tenderness and knee stability tests were normal.  The MEB physical examination revealed tenderness of the right knee.  During an 8 August 2006 orthopedic ROM evaluation, the CI reported buckling, grinding and catching.  Physical examination showed an active ROM with flexion of 135 degrees and extension of 0 degrees.  The right knee was stable and there were no effusions or visible atrophy.  Manipulation of the right knee was uncomfortable.  

At the C&P examination, the CI reported constant 7-8/10 knee pain with occasional buckling and locking.  Physical examination of the right knee showed flexion of 115 degrees and extension of 0 degrees.  There was a positive McMurray’s (meniscal pathology) sign and discomfort over the medial aspect of the medial joint line.  There was no effusion.  

Panel members agreed that the evidence reasonably justified that the functional limitations of the right knee condition contributed to the CI’s inability to perform his military duties and accordingly a separate disability rating is recommended.  The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the right knee condition 30%, coded 5257 (knee, other impairment), based on the C&P examination, citing recurrent subluxation or lateral instability of the knee, which was severe.  The panel agreed there was no knee limitation of motion that supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  There was no fracture, nonunion or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  The panel agreed that the postoperative 5259 code (cartilage, semilunar, removal of, symptomatic) was applicable in this case and justified a rating of 10%.  There was no evidence of recurrent subluxation or lateral instability for an additional rating of 10% coded 5257.  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 knee condition, coded 5259.  

Chronic Low Back Pain: According to the STR and MEB NARSUM, the CI’s back condition began in June 2005, while no longer on active duty, and was said to be related to the right ankle and knee conditions.  The MEB NARSUM examination, noted complaints of low back pain as a dull 4-5/10.  On examination, the CI had normal back and hip ROM, straight leg raise test, lower extremity motor examination, pinprick examination, and deep tendon reflex examination.  During the MEB examination, the CI reported right-sided back pain.  Physical examination revealed lumbar tenderness.  The 8 August 2006 orthopedic ROM evaluation showed active flexion of 70 degrees (normal 90) and combined ROM of 220 degrees (normal 240).  There was no mention of painful motion.  

At the C&P examination, the CI reported constant dull aching 5/10 pain, radiating to the right hip.  At times he experienced tingling and numbness over the lateral aspect of his right knee and intermittent weakness in the right lower leg.  Physical examination showed flexion of 60 degrees with pain at the end range and combined ROM of 195 degrees (240 normal).  Gait was normal.  The panel majority noted the back condition was profiled (listed first), implicated in the commander’s statement and judged by the MEB to fail retention standards.  The panel majority agreed the evidence reasonably justified that the functional limitations of the back contributed to the CI’s inability to perform his MOS duties and recommends a separate disability rating.  

The panel directed attention to its rating recommendation based on the above evidence.  The VA did not rate the back condition because they determined the condition neither occurred in nor was caused by military service.  The panel majority agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on the orthopedic examination coded 5237 (lumbosacral strain).  A higher evaluation of 20% was not warranted because there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  There was no associated radiculopathy for separate peripheral nerve rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% for the back condition, coded 5237.  

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, the panel recommends a disability rating of 10%, coded 5259 IAW VASRD §4.71a.  In the matter of the low back condition, the panel majority recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommends no change but elects not to submit a minority opinion.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Ankle Pain	5271	10%	
Chronic Right Knee Pain	5259	10%	
Chronic Low Back Pain	5237	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170401, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008185, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure