RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04666
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060421

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Aircraft Powerplant Repairer, medically separated for “right subtalar arthrodesis” with a disability rating of 10%.  

CI CONTENTION:  Review requested 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 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 - 20060405	VARD - 20061020	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Subtalar Arthrodesis	5272	10%	Status Post, Subtalar Arthrodesis	5270	30%	20060531	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Right Subtalar Arthrodesis.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent right foot surgery in August 2005 for subtalar arthrodesis (fusion of the talocalcaneal joint).  The surgeon counseled that permanent difficulty ambulating on uneven surfaces was the long term outcome of the surgery, and healing could be expected to take from 6-9 months.  At an orthopedic follow-up visit on 25 October 2005, right ankle X-rays showed  surgical hardware intact and that the foot was “plantigrade” (in neutral position).  

The 19 December 2005 MEB NARSUM examination, 4 months after surgery and 4 months prior to separation, noted CI complaints of constant moderate foot pain, difficulty standing for prolonged periods, and the inability to run.  He was using a cane, and provider noted “abnormal angle and basic gait.”  The ankle and first metatarsophalangeal joint range of motion (ROM) was normal, but subtalar joint motion was absent with decreased mid-tarsal joint ROM.  

At the 7 February 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months before separation, the CI reported constant foot pain aggravated by activity.  Physical examination showed a limp, ambulation with a cane and the inability to heel-toe walk.  There was tenderness of the right foot, and decreased foot ROM in all planes.  

At the 31 May 2006 VA Compensation and Pension (C&P) examination, 9 months after surgery and 1 month after separation, the CI reported chronic right foot and ankle pain.  He wore an ankle brace and used a cane for ambulation.  Physical examination showed good balance and normal weight bearing, but an abnormal gait with a limp favoring the right.  There was tenderness along the bottom of the foot and ankle, mild swelling, and pain with manipulation, weight bearing and all foot movements.  Ankle dorsiflexion was to 10 degrees (normal 20) and plantar flexion to 20 degrees (normal 45), with painful motion, but no additional loss of ROM with repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition 10%, analogously coded 5272 (subastragalar (subtalar) or tarsal ankyloses) citing “subtalar range of motion absent and range of motion of mid-tarsal joint is diminished.  Good weight bearing position.”  The VA rated the right foot condition 30%, coded 5270 (ankle ankylosis), based on the C&P examination, citing “ankle ankylosis with plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees.”  The panel majority agreed there was evidence of surgical ankylosis of the subtalar joint in good weight bearing position to support a 10% rating, but could not recommend additional rating of the CI’s chronic foot pain IAW VASRD §4.14 (avoidance of pyramiding), which states “evaluation of the same disability under various diagnoses is to be avoided.”  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the right foot condition.  

BOARD FINDINGS:  In the matter of the right subtalar arthrodesis and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  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:

MINORITY OPINION:  

The minority voter disagrees with the majority conclusion that there was insufficient cause to recommend a change in the PEB adjudication of the right foot condition.  The majority conceded, without explanation, that the only applicable code was 5272, justifiably assessed that its 10% criterion was satisfied, and offered the sole rationalization that no higher rating was supported by correctly asserting that “additional rating” could not be justified without pyramiding.   The weakness in the majority rationale is its failure to justify and pursue more favorable coding options.  It is especially incumbent to do so in cases such as this where the objective functional disability is clearly in excess of a rating obligated by the code choice.

The minority acknowledges that code 5272 is a close clinical fit with the pathology in this case, but disagrees with the presumed majority position that this fact mandates application of the code.  Of note, the VA also did not share that position.  The minority asserts that the latitude offered under VASRD §4.7 (higher of two evaluations) is readily applicable here.  Since other coding options are also reasonable, the §4.7 “question as to which of two evaluations” is satisfied, and other coding options also support the §4.7 stipulation that “the disability picture more nearly approximates the criteria required” for a higher rating (elaborated below).

The minority disagrees with the VA’s choice of code 5270, since there was some preserved ankle motion and the full joint was not ankylosed.  The segmental ankylosis was captured by code 5272.  A fair coding alternative is code 5271 for limitation of ankle motion, although the criterion for a more favorable 20% rating is “marked” limitation.  The minority concedes that the ankle ROM in evidence was more reasonably characterized as “moderate,” and provide no advantage with the associate 10% rating.  The minority, however, firmly endorses application of code 5284 (foot injuries, other) which rates solely for the degree of disability.  That allows for a fair rating of the disability in evidence, without being constrained to the narrow anatomic criteria of code 5272, and fully complies with the language and intent of §4.7.  Code 5284 offers ratings of 10% for “moderate,” 20% for “moderately severe,” and 30% for “severe” disability.  

Although a characterization of severe disability under code 5284 cannot be justified, the minority asserts that the functional impairment in evidence quite reasonably justifies a characterization as moderately severe (20%) disability.  The gait was markedly impaired and a brace and cane were required.  Anatomic alignment of the foot and ankle, although permitting weight-bearing, was still abnormal and conducive of constant pain with ambulation.  Prolonged walking and standing were prohibited.  Running, significant load bearing, and any strenuous activity were impossible.  Clearly significant occupational limitations were imposed.  In the minority’s judgment, this degree of disability is not fairly characterized as moderate.

The Secretary is respectfully requested to consider the minority recommendation that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Subtalar Arthrodesis	5284	20%	

[AR NUMBER], 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.

					       

Enclosure