RECORD OF PROCeediNGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxxx	CASE:  PD-2017-05024
BRANCH OF SERVICE:  army	SEPARATION DATE:  20080719

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Radiology Specialist, medically separated for “insidious onset of lower back pain” and “chronic right ankle pain,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  Worsening right ankle, left shoulder, lumbar spine, and allergic rhinitis conditions are contended.  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 (Medical Evaluation Board), but determined by the Physical Evaluation Board (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 - 20080417	VARD - 20081002	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Insidious Onset of Low Back Pain	5299-5243	10%	Herniated Disk with DJD of the Lumbar Spine	5243	10%	20080710	
Chronic Right Ankle Pain	5099-5003	10%	Right Ankle Stress Fracture with Osteochondral Defect and Degenerative Changes Postoperative	5010-5271	10%		
Left Shoulder Impingement	Not Unfitting	Left Shoulder DJD with Bankart Lesion and AC Degenerative Changes	5010-5203	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY: 

Insidious Onset of Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI had ongoing back pain noted at an emergency room visit in September 2006.  X-rays dated 11 December 2006 showed findings suggestive of degenerative disc disease (DDD) at L4-5 and L5-S1.  His pain was exacerbated by lifting patients and was associated with muscle spasm.  Various treatments including physical therapy (PT), traction, medications for pain and muscle relaxation, and chiropractic manipulation provided minimal improvement, and there was no surgical indication.  At a pain clinic evaluation on 5 February 2008 forward flexion of the lumbosacral spine was 45 degrees (normal 60) and lumbar epidural steroid injections were scheduled.  A lumbar spine MRI in March 2008 revealed L4-L5 and L5-S1 internal disc derangement and desiccation, central disc herniation protrusion at both levels, and an annular tear posteriorly, without significant nerve root deformity.  

At the 28 March 2008 MEB T examination, 4 months prior to separation, physical examination revealed thoracolumbar spine flexion to 100 degrees (normal 90 for rating IAW the VASRD) and the combined range of motion (ROM) was 210 degrees (normal 240), all with painful motion present.  During the MEB NARSUM examination 3 days later, the CI reported chronic low back pain.  Physical examination of the lumbar spine revealed a normal appearance, lumbosacral spinal tenderness, and pain with flexion and extension.  Straight leg raising (to determine nerve root irritation) was negative.  On 7 April 2008 the CI complained of exacerbation of his back pain without a history of recent trauma or injury.  The pain was successfully treated with an intramuscular injection of Toradol (ketorolac, a nonsteroidal anti-inflammatory drug).  A bone density study of the spine (L1-L4) was normal on 29 April 2008.  

At the 10 July 2008 VA Compensation and Pension (C&P) examination, one week before separation, the CI reported chronic low back pain. Physical examination showed a normal gait.  Lumbar spine flexion and the combined ROM were normal but with painful motion.  There was no additional loss of ROM due to pain, weakness, incoordination, or lack of endurance after repetition. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, analogously coded 5299-5243 (intervertebral disc syndrome (IVDS)), citing spinal tenderness and limited combined ROM.  The VA also rated the low back condition 10%, coded 5243, based on the C&P examination, citing painful motion.  The panel agreed there was no limitation of thoracolumbar spine motion to support a 10% rating, as recorded by MEB NARSUM and VA ROM examinations proximate to separation.  However, there was sufficient STR and VA evidence of painful motion to support a 10% rating IAW VASRD §4.59.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of IVDS with incapacitating episodes that would provide for a higher rating under that formula.  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 low back condition.

Right Ankle Pain.  According to the STR and MEB NARSUM, the CI suffered a right talus-dome fracture when he rolled his ankle during physical training.  He subsequently underwent arthroscopic surgery in 2001 followed by being in a cast for 2½ months and PT thereafter. However, since that time, he experienced chronic right ankle pain.  X-rays of the right ankle dated 19 June 2006 showed surgical changes and an osteochondral defect of the talar bone in its lateral aspect.  A bone scan of the right ankle on 13 October 2006 was abnormal with findings suggestive of nonunion, a non-healing fracture, or infection.  X-rays one week later showed the alignment of the hardware and bony structures were unchanged nor was there a slight radiolucency in the talar bone.  An MRI of the right ankle dated 17 November 2006 demonstrated osteochondral lesions involving both the medial and lateral aspects talar dome as well as the distal lateral tibia.  The CFL (calcaneofibular ligament) appeared thickened and was consistent with a tear.   

At an orthopedic clinic visit on 25 October 2007 the examiner noted that X-rays revealed significant osteochondral lesions and joint space narrowing consistent with a diagnosis of tibiotalar osteoarthritis and there was no role for surgery at that time.  The 8 November 2007 MEB PT examination revealed repetitive right ankle dorsiflexion to 3 degrees (normal 20) and plantar flexion was 35 degrees (normal 45).  Painful motion present.  

An MRI of the right ankle on 25 March 2008, less than 4 months prior to separation,  demonstrated an osteochondral injury involving the dome of the talus medially and laterally, irregularity of the subchondral bone, and a marked degree of edema with chondromalacia involving the anterior aspect of the articular distal tibia.  There were chronic tears of the anterior talofibular ligament (ATFL) and CFL.  The MEB examination 3 days later revealed repetitive right ankle dorsiflexion to 5 degrees and plantar flexion to 30 degrees; painful motion was present. During the MEB NARSUM examination the CI reported chronic right ankle pain.  Physical examination of the right ankle revealed a normal appearance, tenderness on the medial aspect of the ankle, and pain with inversion, eversion, dorsiflexion, and plantar flexion.  There was no instability of the ankle.  X-rays of the right ankle on 25 June 2008 revealed evidence of osteochondritis dissecans or an old osteochondral fracture of the lateral talar dome.  Degenerative changes were seen in the ankle joint along with small ossific densities along the medial joint line.   There was prior surgery with suture anchors in the lateral malleolus. 

At the C&P examination the CI reported chronic right ankle pain.  Physical examination showed a normal gait. Right ankle dorsiflexion was 20 degrees and plantar flexion was 45 degrees.  Painful motion and mild laxity were present. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, analogously coded 5099-5003 (degenerative arthritis), citing painful motion.  The VA also rated the right ankle condition 10%, analogously coded 5010-5271 (arthritis due to trauma-ankle, limited motion) based on the C&P examination, citing degenerative changes, functional loss, and painful motion.  Although the initial MEB PT examination recorded dorsiflexion at 3 degrees to support a “marked” limitation of motion rating, the panel agreed that the preponderance of STR and VA evidence proximate to separation, indicated improvement of ROMs. Also, the VA examination most proximate to separation did not support a “moderate” limitation of motion for a 10% rating.  However, there was painful motion, which is in accord with the PEB rating of 10%.  The panel then considered a rating under VASRD code 5262 (fibula and ankle, impairment) but there was no STR or VA evidence of nonunion or malunion to support that approach.  The panel considered alternative VASRD ankle and analogous codes, but all were less applicable to rating. 

The panel then considered the use of code 5284 (foot injuries, other) since the original injury was to the talus dome and imaging evidence indicated osteochondral changes and tears of the ATFL and CFL.  The panel minority voter felt a “moderate” foot injury rating of 10% is reasonable, although it offers no benefit to the CI since he had a normal gait and normal ROM of the ankle just proximate to separation.   However, the panel majority determined a “moderately severe” foot injury rating of 20% using code 5284 is reasonable since the CI had continuous pain as a result of the talus dome fracture and subsequent surgery as well as imaging evidence that indicated osteochondral changes and chronic tears of the ATFL and CFL.  While the CI had a normal gait, nevertheless, he could not run and still required medication for the pain.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the right ankle pain condition, coded 5284.  

Contended PEB Condition:  Left Shoulder Impingement.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement, and did not fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the right ankle condition, the panel majority recommends a disability rating of 20%, coded 5484 IAW VASRD §4.71a.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  In the matter of the contended left shoulder condition, the panel recommends no change from the PEB determination as not unfitting.  

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Insidious Onset of Low Back Pain	5299-5243	10%	
Chronic Right Ankle Pain	5284	20%	
COMBINED	30%	

Dear XXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a permanent disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,		      

Enclosure