RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02568
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050413

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Metal Worker, medically separated for “chronic pain, left knee, ankle and foot, status post-operative fixation of tibial-fibula shaft fracture” with a disability rating of 20%.

CI CONTENTION:  “At the time of separation I was awarded 20 percent for my lower leg injury, during this time residual effects of this injury may not have been considered.  I have secondary conditions that are link to this one injury and they have affected my quality of life.”  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 - 20041210	VARD - 20060509	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Knee, Ankle and Foot …	5099-5003	20%	Left Tibia/Fibula Fracture Status Post Open Reduction Internal Fixation (Also Claimed as Left Knee/Ankle/Foot Pain)	5262	10%	20060402	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Chronic Left Knee, Ankle, and Foot Pain.  The PEB combined the left knee, ankle and foot conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 20% with application of the US Army Physical Disability Agency (USAPDA) 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 left knee, ankle and foot conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to the service treatment record and MEB narrative summary (NARSUM), the CI sustained a distal mid-third tibial-fibula shaft fracture after a trailer fell on her left leg in February 2003. An open reduction-internal fixation (ORIF) with a plate was performed, and in May 2003, she  underwent an exchange intramedullary nailing and hardware removal.  The 26 October 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of left knee, ankle, and foot pain.  The CI had a pre-surgery history of left knee chondromalacia-like symptoms that worsened following surgery.  The left leg was in constant pain, rated at 5/10, with flares to 7/10.  Pain was exacerbated by activity, and she was also seeing a pain specialist for left ankle and foot pain described as a, "pins and needle radiation from the distal medial incision."  The foot pain would come and go and was assessed as some type of neuroma.  The CI had increased pain with weightbearing on the left leg and used a cane.  Leg X-rays showed a well-healed tibia/fibula shaft fracture with an intramedullary nail in the intramedullary canal with proximal and distal fixation.  Physical examination revealed an antalgic gait secondary to pain with decreased stance time in the left lower extremity.  There were five well-healed lower leg scars and a bump from a hypertrophic healed fracture, but no tenderness in the area.  Left knee flexion was 135 degrees (normal 140), and extension was -2 degrees (normal 0).  There knee no joint line or patellar tenderness but a mildly positive patellar glide.  Left ankle dorsiflexion was to 5 degrees (normal 20), plantar flexion to 25 degrees (normal 45), and inversion and eversion were “normal.”  The left leg was distally neurovascularly intact, but there was a positive radiating paresthesias (tingling and prickling sensation).  The CI was diagnosed with left anterior knee pain secondary to intramedullary nailing, and left lower extremity post-operative neuroma.

At the 2 April 2006 VA Compensation and Pension (C&P) general examination, 12 months after separation, the CI reported constant left knee pain with daily flare-ups rated at 8/10, and stiffness, locking and popping; left shin pain was rated at 4/10.  She used a cane, but the examiner noted a smooth steady gait with good posture.  Left knee flexion was to 140 degrees and extension to 0 degrees, with painful motion, but no ROM loss following repetition.  There was no effusion, increased heat, or redness or edema.  Left ankle dorsiflexion was to 20 degrees and plantar flexion to 45 degrees, with painful motion and ROM loss following repetition.  Scars were well healed.  Knee X-rays were normal and a left ankle X-rays showed the intramedullary rod within the tibial shaft and healed distal tibia and fibular shaft fractures.  

During a second C&P general examination on 4 April 2006, by another provider, the CI reported left knee and ankle pain with constant left tibia/fibular pain.  There was decreased ankle mobility and the knee had stiffness and locking.  Physical examination showed an antalgic gait and left knee crepitation, but no tenderness.  Flexion was to 124 degrees and extension to 0 degrees, with painful motion.  The left lower leg had mild mid-shaft tenderness but no deformity.  Bilateral left ankle dorsiflexion was to 15 degrees and plantar flexion to 35 degrees, without painful motion or ROM loss after repetition.  Lower extremity sensory testing was intact except for a localized loss around the left kneecap, and motor strength was 4/5.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB rated the bundled left knee, ankle, and foot condition 10%, analogously coded 5099-5003, citing the USAPDA pain policy.  The VA rated the left lower extremity condition 10%, coded 5262 (tibia and fibula, impairment), based on the C&P examinations, citing evidence of a slight knee disability due to painful and limited motion.  Panel members adjudged that the chronic pain of the left knee and left ankle following tibia-fibula shaft fracture and ORIF were not separately unfitting as they were not separable without speculation; however, given the underlying pathology of the long bone fracture, rating would ideally and appropriately combine the knee and ankle disability under code 5262 (which considers both ankle and knee disability due to tibia-fibula conditions).  The panel considered that the knee or ankle disability was no greater than moderate (20%).  There was insufficient evidence of marked knee or ankle disability to support the next higher 30% tibia-fibula rating.  Alternatively, separately rating each joint would not be of benefit as there was no specific ankle joint injury and any joint-specific ratings would not support greater than a 20% combined rating.  

The panel considered whether the left foot condition, when considered separately from the tibia-fibula fracture with knee and ankle disability condition(s), was unfitting for continued military service.  The left foot condition (left lower extremity post-operative neuroma) was separately listed by the MEB as not meeting retention standards, separately listed on the profile and not separable from the commander’s implication of the CI’s leg injury interfering with duty.  However, there was no weakness and no abnormal electrodiagnostic testing.  Given the tenants of VASRD §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited) and the overlap between ankle and foot pain following tibia-fibula ORIF, the panel agreed that the foot condition was intrinsic to the rated left knee, ankle and foot condition and a separate rating cannot be supported without pyramiding (VASRD §4.14).  Thus it is appropriately subsumed under the same rating, and not separately unfitting or ratable.  After due deliberation, considering all 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 for the left knee, ankle and foot condition.  

BOARD FINDINGS:  In the matter of the left knee, ankle and foot condition, the panel 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 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 20170302, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190007578, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.