RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX	CASE:  PD-2020-00120
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030908

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Human Resource Specialist, medically separated for “[left] foot and ankle pain” and “chronic lower back pain,” each rated 0%, with a combined disability rating of 0%.  

CI CONTENTION:  The VA provided higher ratings.  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 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 - YYYYMMDD	VARD - YYYYMMDD or NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Foot and Ankle Pain 	5099-5003	0%	[Surgical Residuals] Left Ankle	5271-5010	10%	20030711	
Lower Back Pain 	5293-5299-5295	0%	Discogenic Low Back Pain	5292	20%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Left Foot and Ankle Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent a left ankle subtalar joint fusion in 1999 after a parachute landing injury.  Provider entries in the STR documented persistent pain with weight-bearing and nonspecific range of motion (ROM) limitation with no mention of painful motion.  Serial X-rays demonstrated intact hardware, normal alignment, and mild degenerative changes.  There was no STR evidence for more severe ROM limitation, joint instability or ankylosis, and only one provider note, 10 months before separation, recorded an antalgic gait and joint weakness due to pain; however, this was flanked by multiple entries that indicated normal gait and joint strength.  

During the 12 May 2003 MEB NARSUM examination, 4 months prior to separation, the CI complained of persistent left ankle pain that was “better and tolerable” at baseline, but “quite painful” with running or ruck marching.  Physical examination noted tenderness, but no malalignment, instability, gait disturbance, or subtalar ROM limitation.  Although the examiner described “full...smooth” ankle ROM, dorsiflexion was limited to 10 degrees (normal 20) and plantar flexion to 30 degrees (normal 45).  The NARSUM was silent in regards to painful motion, but the 9 April 2002 MEB physical examination noted pain with plantar flexion.

At the 11 July 2003 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported daily foot pain, rated at 3-4/10, with exacerbations to 8/10 after prolonged standing or walking.  Although the spine examiner noted a normal gait, the ankle examination incongruently reflected a “limp on the left.”  There was nonspecific limitation of subtalar ROM due to the fusion, but no tenderness, malalignment or instability.  The examiner referenced the NARSUM left ankle ROM measurements without mentioning painful motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left foot and ankle condition 0%, coded 5099-5003 (analogous to degenerative arthritis), referencing the US Army Physical Disability Agency pain policy.  The VA rated the left ankle condition 10% (subsuming the foot), coded 5271-5010 (limitation of ankle motion due to traumatic arthritis), based on the C&P examination, citing “painful or limited motion.”  Panel members agreed there was satisfactory evidence of painful motion to support a minimum 10% rating IAW VASRD §4.59 or an alternate 10% rating under code 5271 for limitation of motion.  The panel also considered an analogous rating under code 5283 (malunion or nonunion of the tarsal or metatarsal bones) and agreed the functional impairment in evidence was reasonably characterized as moderate.  The panel considered other VASRD ankle and analogous codes, but all were less applicable and not advantageous for rating.  After due deliberation, considering all the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the left foot and ankle condition, coded 5299-5283. 

Low Back Pain (LBP).  The CI suffered an atraumatic onset of LBP in early 2002 with intermittent lower extremity radiation but no motor or sensory impairment.  Radiographic studies showed degenerative disc disease at L4-5 and L5-S1 without neural compromise, and multiple neurological examinations were normal with no surgery recommended.  Numerous STR provider entries documented grossly normal or near normal thoracolumbar ROM, although a physical therapy (PT) note on 10 December 2002 recorded a 50% reduction in flexion and other planes of motion, and the MEB physical examination noted lumbar flexion limited to approximately 45 degrees (normal 90) that was terminated by pain.  There was no history of re-injury or other exacerbation of the back condition during this period or preceding the VA C&P findings (as below), and a provider note from the interval between the PT and MEB evidence documented grossly normal thoracolumbar ROM.  There was also ample evidence of a normal gait and posture, but no recurring attacks or incapacitating episodes.  

The NARSUM did not incorporate the back condition, but it was addressed in a 19 March 2003 MEB orthopedic consult, 6 months prior to separation, during which the provider documented “more than mild” LBP with “some antalgic gait” (not addressing possible contribution from the foot and ankle condition) and mild tenderness, but no spasm or guarding, and normal neurological findings.  Lumbar flexion was to 90 degrees and extension to 10 degrees (normal 30), with no measurements in other planes or mention of painful motion.

At the VA C&P examination, the CI complained of constant LBP, rated at 4-5/10, with flares to 8/10 aggravated by prolonged sitting.  Physical findings showed a normal gait (with reference to spine), posture, and spinal contour, but no tenderness or spasm, and 3/5 strength (secondary to LBP) in some bilateral and left lower extremity groups.  The examiner recorded lumbar flexion to 20 degrees and extension to 10 degrees without note of any associated pain or guarding.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 0%, dual coded 5293-5299-5295 (intervertebral disc syndrome (IVDS) rated analogously as lumbosacral strain), referencing the orthopedic consult ROM evidence.  The VA rated the back condition 20%, coded 5292 (limitation of lumbar spine motion), based on the C&P examination and citing the applicable criterion for “moderate” limitation.  The 2003 VASRD codes and rating criteria for the spine, which must be applied to the panel’s recommendation IAW DoDI 6040.44, differed significantly from the current VASRD §4.71a spine rating formula.  In addition to the above rating scale for limitation of motion under code 5292, there were two other potentially applicable codes in effect.  Code 5295 (lumbosacral strain) conferred a 0% rating (as per the PEB) for “slight subjective symptoms only,” and a 10% rating for “characteristic pain on motion;” higher ratings stipulated “loss of lateral spine motion” and other criteria not in evidence.  Code 5293 (IVDS) offered a 10% rating for “mild” symptoms, and all of the higher ratings (“moderate” 20%, “severe” 40%, and “pronounced” 60%) stipulated “recurrent attacks” or objective neurologic deficits, neither of which were supported by the evidence.  Interim VASRD guidance in effect at the time of separation also permitted rating for incapacitating episodes under code 5293, but none were documented.

The panel agreed that the ROM evidence reasonably satisfied at least the 10% criterion under code 5292, 5295, or 5293, but that the overall ROM evidence did not justify a higher rating under code 5292.  The preponderance of evidence over most of the CI’s clinical course indicated little or no ROM limitation, consistent with the pathology and lack of any reinjury or other aggravation (e.g., profiled).  The exceptions, especially the severe deterioration reflected by the VA C&P examination, were not sufficiently probative to support a conclusion that there was moderate or worse ROM limitation as a ratable baseline.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the low back condition, coded 5299-5293. 

BOARD FINDINGS:  In the matter of the left foot and ankle condition, the panel recommends a disability rating of 10%, coded 5299-5283 IAW VASRD §4.71a.  In the matter of the low back condition, the panel recommends a disability rating of 10%, coded 5299-5293 IAW VASRD §4.71a in effect.  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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Ankle and Foot Pain	5299-5283	10% 	
Lower Back Pain	5299-5293	10%	
COMBINED	20%	

The following documentary evidence was considered:

AR20200009910 

Dear XXXXXXXXXXXXXXXXXXXXX:

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