RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200865 SEPARATION DATE: 20030724 BOARD DATE: 20130315 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (91W/Medic) medically separated for a bilateral ankle condition. He began experiencing ankle problems in 1996; and, over the ensuing years presented with intermittent strains, pain and ankle instability. He underwent surgical intervention for the left ankle in 2001, and for the right in 2002. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The condition, characterized as “bilateral ankles: persistent pain,” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-507. The MEB also identified and forwarded seven other conditions (see rating chart below) judged to meet retention standards. The PEB adjudicated “bilateral ankle pain” as unfitting, rated 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy. The remaining conditions were determined to be not unfitting. The CI made no appeals, and was medically separated with a 0% disability rating. CI CONTENTION: “It has been almost 10 yrs and to this date I suffer from my pains every day. My ankles limit my ability on how much I can lift without the sharp shooting pains. As well how long I can stand or walk. I suffer from constant back pains on a daily bases and now my hypertension is starting to affect my daily living, that of anger and pain because of it, it has been a big part of 2 heart attacks in the past 6 months.” SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting ankle condition is addressed below. The requested lumbar and depressive disorder (by implication) conditions, which were determined to be not unfitting by the PEB, are likewise addressed below. The hypertension and cardiac conditions mentioned in the application were not identified by the PEB, and thus are not within the DoDI 6040.44 defined purview of the Board. Those, and any other conditions or contention not requested in this application, remain eligible for future consideration by the respective Board for Correction of Military Records. The Board acknowledges the CI’s information regarding the significant impairment with which his service- connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. The Board likewise acknowledges the CI’s contention for rating of his lumbar and depressive disorder conditions which were determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD), and based on the degree of disability evidenced at separation, will be recommended. RATING COMPARISON: Service IPEB – Dated 20030404 VA (7 weeks Pre-Separation) Condition Code Rating Condition Code Rating Exam Bilateral Ankle Pain… 5099-5003 0% Surgical Residuals, Left Ankle 5271 10% 20030602 Surgical Residuals, Right Ankle 5271 10% 20030602 Plantar Fasciitis Not Unfitting Plantar Fasciitis, Right Foot 5284 0% 20030602 Plantar Fasciitis, Left Foot 5284 0% 20030602 Major Depressive Disorder Not Unfitting Major Depressive Disorder 9434 30% 20030530 Personality Disorder Not Unfitting Personality Disorder 9499-9440 NSC 20030530 Episodic Low Back Pain Not Unfitting Lumbar Degenerative Disc 5293-5292 20% 20030602 Occasional Migraine Not Unfitting Tension Headaches 8100 NSC 20030602 GERD Not Unfitting GERD 7399-7346 0% 20030602 Fatty Liver Not Unfitting Liver Fatty Infiltration 7312 NSC 20030602 No Additional MEB/PEB Entries Other X 3 (Included Hypertension Rated 10%) 20030602 Combined: 0% Combined: 70% Derived from VA Rating Decision (VARD) dated 20030903 (most proximate to date of separation [DOS]). ANALYSIS SUMMARY: Bilateral Ankle Condition(s). The CI first presented with ankle pain after a run in 1996. There are various entries in the service treatment record (STR) after that for similar complaints. He came to orthopedic attention in January 2000, and was noted with bilateral instability. He was treated with physical therapy and conservative measures without success. He underwent separate arthroscopic Broström procedures in 2001 and 2002. Radiographic evaluation revealed no evidence of arthritis or malalignment. The surgeries improved the mechanical instability, but the pain persisted and MEB referral ensued. The narrative summary (NARSUM) noted the CI’s preference to wear ankle braces for “perceived” instability; and, noted aggravation with negotiating uneven terrain, prolonged standing, running, and heavy lifting. The physical examination noted tenderness with no other positive findings. The range-of- motion (ROM) measurements were 10 degrees dorsiflexion (20 degrees normal) bilaterally (with pain); and 40 degrees left/35 degrees right plantar flexion (45 degrees normal). MEB outpatient notes documented grossly normal ROMs. At the VA Compensation and Pension (C&P) evaluation (7 weeks prior to separation), the CI reported daily bilateral ankle pain worse with running, jogging, and prolonged standing or sitting. He continued to wear a brace, although joints were stable by exam. No tenderness or other positive joint findings were documented. The VA ROM evaluation documented bilateral painful motion, with dorsiflexion of 10 degrees bilaterally and plantar flexion of 40 degrees bilaterally. The Board directs attention to its rating recommendations based on the above evidence. IAW VASRD §4.7 (higher of two evaluations), the Board must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating. In this case, both ankles were considered to fail retention standards; both were implicated by the NARSUM and the commander’s statement; and, both were profiled. Members agreed therefore that each joint should be conceded as separately unfitting; and, that coding and rating features were logically identical. The PEB’s 0% bilateral rating, analogous to code 5003 (degenerative arthritis), rested on application of the USAPDA pain policy which circumvents VASRD §4.59 (painful motion); and, both the MEB and VA examiners documented pain-limited motion. There was no ankylosis, malunion or mechanical instability of either ankle which would justify application of any available joint code other than 5271 (ankle limitation of motion); the latter offering ratings of 10% for ‘moderate’ and 20% for ‘marked’ limitation. The modest ROM restrictions in evidence would not justify more than the 10% rating under this code, with or without application of §4.59. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends that the bilateral ankle condition be rated as separately unfitting joints; each coded 5271 and rated 10%. Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were a lumbar spine condition and major depressive disorder (MDD). The CI had a history of back pain dating to 1997 without profiles; and, there were no STR entries for active treatment in the years preceding separation. The psychiatric addendum to the NARSUM noted a self- referral to Mental Health in August 2002. The MEB psychiatrist specifically stated, “He does not need a psychiatric profile. He does not meet the requirement for a medical board based on his diagnosis of major depressive disorder.” The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. None of these conditions were profiled; none were implicated in the commander’s statement; and, none were judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for either the lumbar spine or MDD conditions. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on the USAPDA pain policy for rating the ankle condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral ankle pain condition, the Board unanimously recommends that it be rated for two separate unfitting conditions as follows: 10% for the right ankle and 10% for the left ankle, each coded 5271, IAW VASRD §4.71a. In the matter of the contended lumbar condition and major depressive disorder, the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Surgical Residuals, Right Ankle 5271 10% Surgical Residuals, Left Ankle 5271 10% COMBINED (w/ BLF) 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120610, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxx, AR20130007712 (PD201200865) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)