RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04037
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20051122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Counter Intelligence Agent, medically separated for “bilateral ankle pain” with a disability rating of 0%.

CI CONTENTION:  “Review all 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 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 - 20050824	VARD - 20061130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Pain	5099-5003	0%	Right Ankle Status Post Brostrom and Tendon Reconstruction 	5271-5024	10%	20060712	
			Left Ankle Strain with Plantar Spur	5271-5024	10%	20060712	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Bilateral Ankle Pain.  The PEB combined the right and left ankle conditions under a single disability rating, coded analogously to 5003 and rated 10% with application of the US Army Physical Disability Agency (USAPDA) 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.

According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent right ankle surgery (modified Brostrom) in June 2002 to improve stability but the ankle pain continued.  In June 2003, the CI underwent right ankle lateral ligament reconstruction.  Post-surgical bilateral ankle X-rays revealed degenerative changes with sclerosis and narrowing of the ankle joints; asymmetrical and more marked on the right ankle.

At the 17 November 2004 MEB orthopedic examination, 12 months prior to separation, the CI reported right greater than left ankle pain and the need to use cane when outdoors.  Physical examination revealed a hesitant gait.  The right ankle scar was tender.  There was no bilateral ankle swelling.  Range of motion (ROM) was reported as “10 up [dorsiflexion] and 60 down [plantar flexion].”  Bilateral X-rays revealed no evidence of tibiotalar joint fracture or arthritic deformity, and no laxity was observed.  A right ankle MRI on 27 November 2004 showed post-surgical anterior talofibular ligament change, a thickened calcaneofibular ligament and the peroneus brevis tendon appeared flattened and linear.  The left ankle MRI performed the same day showed thickening of the anterior talofibular ligament compatible with sequelae of a prior sprain.  No other abnormalities were seen.  

During the 25 February 2005 MEB NARSUM examination, 9 months prior to separation, noted complaints of right more than the left ankle pain and left ankle instability.  Physical examination showed a hesitant gait.  The CI was able to walk bilaterally on the heels and balls of his feet.  There was right ankle tenderness without swelling or numbness.  Right ankle dorsiflexion was 15 degrees (normal 20) and plantar flexion was 60 degrees (normal 45); painful motion was not addressed.  There was no left ankle tenderness.  Left ankle dorsiflexion was 15 degrees and plantar flexion was 60 degrees; painful motion was not addressed.  Bilateral stability testing was negative.

At the 12 July 2006 VA Compensation and Pension (C&P) evaluation, 8 months after separation, the CI reported constant bilateral ankle pain but denied incapacitating episodes.  Physical examination showed an abnormal gait as he leaned to the left.  The CI was using a cane for ambulation.  Both ankles showed tenderness.  Bilateral ankle dorsiflexion was 20 degrees and planter flexion was 40 degrees; painful motion was present bilaterally.  There was no additional loss in motion with repetition in either ankle.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral ankle condition 10%, coded 5099-5003 (arthritis, degenerative), citing application of the USAPDA pain policy.  The VA rated the left and right ankle conditions 10% each, both coded 5271-5024 (ankle, limited motion-tenosynovitis), based on the C&P examination, citing bilateral painful motion.

The panel first considered whether the left and right ankle conditions remained separately unfitting, having been decoupled from the combined PEB adjudication.  The commander’s statement only implicated the right ankle condition.  However, the MEB examination (recorded on the DD Forms 2808) documented an L3 profile for bilateral ankle pain and the MEB indicated that both ankles failed retention standards.  The panel determined undue speculation would be required to conclude that impairment from either ankle would not have unacceptably interfered with the performance of military duties, members agreed that each ankle was reasonably justified as separately unfitting.  The panel then considered its rating recommendation for the unfitting ankle conditions.

The panel agreed there was no limitation of dorsiflexion or plantar flexion that supported a rating under the VASRD diagnostic code for limitation of motion (5271).  However, there was sufficient evidence of bilateral painful motion supporting a 10% rating for each ankle IAW VASRD §4.59.  There was no ankylosis of the ankle or subastragalar (sub-tarsal) joints, no malunion of the os calcis (calcaneus) or astragalus (talus), and no astragalectomy for consideration under the respective diagnostic codes (5270, 5272, 5273 or 5274).  After due deliberation, and 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, and 10% for the left ankle condition, both coded 5024 (tenosynovitis).

BOARD FINDINGS: In the matter of the bilateral ankle condition, the panel recommends a disability rating of 10% for the right ankle; and a disability of 10% for the left ankle; both coded 5024 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	
Right Ankle Pain	5024	10%	
Left Ankle Pain	5024	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170502, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180006251 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