RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2017-04214
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080212

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E2, Basic Trainee, medically separated for “chronic bilateral ankle pain status post [S/P] left talus and fibula open reduction and internal fixation [ORIF]” and “right calcaneus fracture,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  The condition should have been rated higher, and continues to worsen, prohibiting optimal employment.  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 - 20080118	VARD - 20080523	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Ankle Pain… 	5099-5003	10%	Left Ankle Fracture (Distal Fibula and Talus) S/P ORIF with Residual Posttraumatic Arthritis	5010-5262	20%	20080429	
Right Calcaneus Fracture	5284	10%	Residual Right Heel Pain from Right Calcaneus	5284	0%	20080429	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Bilateral Ankle Pain.  The PEB combined the right and left ankle conditions under a single disability rating, analogously code 5099-5003 (arthritis, degenerative) and rated 10%, citing 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.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI sustained left ankle and right calcaneal fractures after falling during basic training.  He underwent an ORIF of the left ankle fractures to the body and neck of the talus and the lateral malleolar on 26 June 2007, and the right heel fracture was treated non-operatively.  He was kept non-weight bearing for 8 weeks and then slowly progressed to weight bearing as tolerated.  The permanent profile on 16 November 2007 listed the left ankle and right calcaneus fractures, and the commander’s statement on 9 January 2008 implicated these same conditions as impairing successful duty performance.  

The 16 November 2007 MEB NARSUM examination, 3 months prior to separation, noted the CI was full weight bearing without any assistive device for ambulation.  He reported constant pain in both lower extremities, left greater than right, with the left ankle and hindfoot pain rated at 3/10, and increased to 7/10 with weight bearing.  The right ankle and hindfoot had no pain at rest, but increased to 2/10 with activity.  The examiner noted a mildly antalgic gait favoring the left lower extremity.  There was no right tibia or ankle tenderness or swelling.  Right ankle dorsiflexion (DF) was to 10 degrees (normal 20) and plantar flexion (PF) to 45 degrees (normal).  The left ankle was tender along the talus, but Tinel’s sign (testing for nerve compression) was negative over the surgical incisions.  Left ankle ROM showed 0 degrees of DF beyond neutral and PF to 40 degrees.  Left subtalar motion was markedly decreased compared to the right with mild ankle swelling, but strength, sensation and pulses of both ankles/feet were intact.  Ankle X-rays on the right showed a healed calcaneus fracture without displacement or malunion, and on the left showed post-operative changes and surgical hardware in the talus and fibula.  There was “acceptable” union of the talus, however, there was evidence of some subchondral collapse of the talar dome (suggesting areas of avascular necrosis) and post-traumatic ankle and subtalar joint arthritis.  The NARSUM examiner determined that the CI fell below retention standards due to residuals and pain from the left ankle and right calcaneus fractures.  

During the 29 April 2008 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI stated that he did not want to claim the right ankle, only the left ankle and right foot/heel.  He reported that he stopped playing sports and avoided walking longer than 10 minutes or standing more than one hour.  He did not use an assistive device for ambulation, and had decreased left ankle ROM with swelling and popping at times.  Physical examination showed a limping gait due to the left ankle.  There was no ankle tenderness or swelling, and strength was normal throughout.  Left ankle DF was to 10 degrees and PF to 40 degrees with painful motion through all planes of motion to include eversion and inversion, but no additional ROM loss after three repetitions.  

The panel first considered whether the right and left ankle conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The left ankle was profiled and implicated in the commander’s statement and failed retention standards.  The panel concluded that the left ankle was reasonably considered unfitting.  The right ankle was not listed on the profile or implicated in the commander’s statement, and did not fail retention standards.  The panel noted that the right heel fracture was separately adjudicated and rated by the PEB, and that the CI continued to report right hindfoot and ankle pain.  Though not technically part of the ankle joint, which is comprised of the tibia, fibula and talus, the talus and calcaneus make up the subtalar joint just below the ankle joint and could be responsible for symptoms described as ankle pain.  The panel therefore concluded there was a preponderance of evidence in the record that there was not a separately unfitting right ankle condition apart from the left ankle condition, and in this case, apart from the unfitting right calcaneus fracture.  

The panel directed attention to its rating recommendation of the unfitting left ankle condition based on the above evidence.  As noted above, the PEB rated the bilateral ankle condition 10%, analogously coded 5099-5003, citing the USAPDA pain policy.  The VA rated the left ankle condition 20%, dual coded 5010-5262 (traumatic arthritis-impairment of the tibia and fibula), based on the C&P examination, citing tibia and fibula maluniuon with moderate ankle disability.  Panel members considered a rating under code 5271 (ankle, limited motion of), and agreed that the ROM examinations proximate to separation were consistent with a “moderate” limitation of motion warranting a 10% rating.  Although left ankle ROM measurements at the MEB NARSUM examination showed fixed dorsiflexion in the neutral position, CI was still reasonably considered to be improving after surgery in June 2007 and had only recently achieved full weight bearing without use of an assistive device for ambulation.  By the time of the MEB PT and VA examinations, which were more proximate to separation, DF had improved to 10 degrees.  

The panel considered a rating under code 5284 (for other foot injury), since the left ankle injury was complex, and the panel agreed that the disability more nearly approximated a moderate level rather than a moderately severe degree.  At the post-separation VA examination, ankle ROM had improved and there was no swelling or tenderness.  The CI was still limping but did not require an assistive device for walking.  The panel noted that the ankle injury included a fibula fracture, but there was no nonunion or malunion present to support a rating under code 5262.  The panel considered alternative VASRD ankle and foot codes, but all were less applicable and/or not advantageous to rating.  After unbundling the ankle conditions, the panel’s rating recommendation was the same as that of the PEB and provided no benefit to the CI.  The panel noted that the PEB’s reliance on the USAPDA pain policy was not detrimental to arriving at the highest rating and therefore no change to the PEB’s combined adjudication or coding choice is recommended.  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 bilateral ankle condition.  

Right Calcaneus Fracture.  According to the STR and MEB NARSUM, the CI injured his right heel in June 2007 as discussed above.  A CT scan on 27 June 2007 showed a comminuted fracture of the right calcaneus with moderate distraction and dislocation at the middle and anterior talocalcaneal joint.  The fracture was treated non-operatively, and following post-operative physical rehabilitation, the CI continued to report pain with weight bearing.  The MEB NARSUM examination noted complaints of right ankle and hindfoot pain with activity but none at rest.  Physical findings and ROM measurements were as documented in analysis above for the bilateral ankle pain, and right ankle X-rays showed a well-healed fracture of the anterior calcaneus process with no evidence of ankle/foot posttraumatic arthritis.  
 
At the C&P examination, the CI reported occasional right heel pain with walking or going down stairs, and sharp pain lasting for a few seconds about 1-2 times a week.   The CI did not use a shoe insert, special footwear or assistive device for ambulation.  Physical examination showed no tenderness or swelling and right ankle ROM as noted above.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right heel condition 10%, coded 5284.  The VA rated the right heel condition 0%, also coded 5284, based on the C&P examination, citing the absence of moderate symptoms associated with foot injury.  Panel members agreed that a 10% rating was supported for moderate limitation of ankle motion noted at the MEB NARSUM and PT examinations, and normal findings for the right ankle and foot at the VA examination.  The panel considered alternative VASRD ankle and foot codes, but all were less applicable and/or not advantageous to rating.  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 right heel condition.  

BOARD FINDINGS:  In the matter of the chronic bilateral ankle pain and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the right calcaneus fracture and IAW VASRD §4.71a, 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:

PD-2017-04214

AR20190011342, XXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXX

	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.

		
				PD-2017-04214