RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03171
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041027

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Infantryman, medically separated for “chronic bilateral ankle pain,“ with a disability rating of 10%.  

CI CONTENTION:  The CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20040902	VARD - 20050411	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Ankle Pain	5099-5003	10%	Lt Ankle Pain due to Internal Derangement	5271	10%	20050106	
			Rt Ankle Pain due to Internal Derangement	5271	10%	20050106	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Bilateral Ankle Pain.  The PEB combined the right and left ankle conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 10% 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 the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel noted “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and 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 and left ankle conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s right ankle condition began in 1996 with a reported ankle fracture during a previous period of active duty.  The CI’s left ankle condition began October 2003 with an ankle sprain.  Conservative modes of treatment were unsuccessful.  There was no surgical indication.  A 6 January 2004 MRI of the left ankle, 10 months prior to separation, demonstrated abnormality of the bone marrow signal in the lateral dome of the talus which the radiologist opined likely represented bone marrow edema; however, a small osteochondral defect could not be excluded.  A 9 August 2004 MRI of the right ankle, 3 months prior to separation, demonstrate a small cortical defect or osteochondral defect at the posterolateral aspect of the talar dome.  

The 23 April 2004 orthopedic appointment, 6 months prior to separation, noted continued left ankle pain and reported the right ankle continued to worsen.  Physical examination showed full range of motion (ROM) with pain at the extremes.  There was also pain with heel lifts (plantar flexion while weight bearing) bilaterally.  

The 5 August 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of bilateral ankle pain.  Physical examination showed bilateral tenderness under the lateral malleoli.  The pain was worse on the left than on the right.  He had decreased ROM of the ankles due to pain and tenderness.  Examination of the right ankle revealed dorsiflexion to 20 degrees (normal), plantar flexion to 20 degrees (normal 45), and pain at the limits.  Left ankle dorsiflexion was to 20 degrees and plantar flexion was to 30 degrees, also with pain at the limits.  

At the 6 January 2005 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported pain in both ankles with walking.  Physical examination showed “range of motion of both ankles were normal with ache.”  There was lateral instability in the ankles and some weakened motion against moderate resistance.  However, there was no additional loss of ROM after repetitive movement.  The CI had a normal gait.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral ankle condition 10%, coded analogously 5099-5003, citing the USAPDA pain policy.  The VA rated the bilateral ankle condition 10% for each, coded 5271 (ankle, limited motion of), based on the C&P examination, citing moderate limited motion of each ankle.  

The panel first considered if the right and left ankle conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Both conditions were profiled, implicated in the commander’s statement, and deemed to fail retention standards.  Since undue speculation would be required to conclude impairment from either ankle would not have unacceptably interfered with MOS performance, members agreed each ankle was reasonably justified as separately unfitting.  The panel then considered its rating recommendation for each unfitting ankle based on the above evidence.  

The ankle limitation of motion recorded at the time of the MEB NARSUM examination was mild.  However, there was pain in both ankles with use supporting a 10% rating for functional loss (§§4.40 and 4.59).  All members agreed the limitation of motion was not “marked,” therefore the next higher rating under code 5271 was not justified.  Because there was no ankylosis, nonunion, or malunion, VASRD §4.71a offers no applicable joint or long bone code which would yield a rating higher than 10%.  After due deliberation, considering all 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, and 10% for the left ankle condition, also coded 5271.  

BOARD FINDINGS:  In the matter of the bilateral ankle condition, the panel recommends each joint be separately adjudicated as follows: an unfitting right ankle condition coded 5271 and rated 10%, and an unfitting left ankle condition, coded 5271 and rated 10%, both IAW VASRD §4.71a.  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 Left Ankle Pain	5271	10%	
COMBINED	20%	

The following documentary evidence was considered:

[AR NUMBER], 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.

Enclosure