RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:	BRANCH OF SERVICE: Army
CASE NUMBER:  PD1200835	SEPARATION DATE:  20030216
BOARD DATE:  20120425

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Soldier, SPC/E-4(31R/Multichannel Transmissions System Operator and Maintainer), medically separated for chronic pain, right ankle and low back, rated as minimal/frequent.  The CI first developed right ankle pain while stationed in Hawaii in 1998 and low back pain (LBP) in November 2001 where an emergency room work-up was unrevealing.  Neither condition could be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded right ankle pain (minimal/infrequent), and LBP (minimal/infrequent) as medically unacceptable IAW AR 40-501.  The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication.  The PEB combined the two MEB conditions and adjudicated chronic pain, right ankle and low back, rated as minimal/frequent, as unfitting, rated 0%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD) and the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated with a 0% disability rating.

CI CONTENTION: The CI states: “R ankle surgery, hearing loss, blood pressure, back pain.” Additionally, the CI writes in block 15 of the DD 294, “In 2002 I went to emergency room @ EAMC, Ft. Gordon, GA. and had to have an injection due to a muscle spasm in my neck after an appointment at the physical therapy clinic when an employee tied his self to me and set in a roller chair and had me run up and down the hall at the hospital.  I then had chronic neck pain until and appointment at BAMC, Ft. Sam, TX.  They discovered a ruptured disk in the C-5,C-6 slot and had surgery and nobody even added that to my claim.” 

SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.”  The ratings for unfitting conditions will be reviewed in all cases.  The other requested conditions of hearing loss, blood pressure, and neck pain are not within the Board’s purview.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records.

RATING COMPARISON:  

Service PEB – Dated 20021223	VA*  – All Effective Date 20030217	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Ankle and Low Back, Rated as Minimal/Frequent	5099-5003	0%	Right Ankle Chondromalacia	5299-5271	10%	STRs	
			Chronic Lower Back Pain	5295	0%	STRs	
↓No Additional MEB/PEB Entries↓	Hypertension	7101	10%	STRs	
	DJD, Left Ankle**	5010	10%	STRs	
	0% X 0 / Not Service-Connected x 2	STRs	
Combined:  0%	Combined:  30%	
*The CI failed to report for his C&P Exam.
** VARD of 12/30/04 added this condition, based on STRs and VA visits in 2004, combined increased to 30% w/bilateral factor of 1.9%.  

ANALYSIS SUMMARY:  The PEB combined chronic pain, right ankle and low back as the single unfitting and solely rated condition, coded analogously to 5099-5003, and rated 0%.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints; and, IAW DoDI 6040.44, the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  If the members judge that separate ratings are indicated IAW VASRD §4.7 (higher of two evaluations), each unbundled condition must be reasonably justified as separately unfitting to remain eligible for rating.  When the Board recommends separate ratings in this circumstance, the result may not be lower than the overall combined rating from the PEB.

Since §4.71a criteria are met for separate joint ratings in this case, the Board is pursuing separate fitness and rating recommendations for each condition as follows.  The commander’s statement cited the CI’s inability to perform the duties of his MOS due to both chronic back and ankle problems.  The statement also referenced inability to hammering stakes, camouflaging equipment, wearing the proper deployment uniform and requirement to move heavy parts, which may be related to the limitation of the back.  The narrative summary (NARSUM) confirmed this when the evaluator stated “He has particular difficulty wearing a flack vest or swinging a sledge hammer,” in reference to his back limitations.  Furthermore, the commander’s statement also cited the requirement to “run to execute small missions,” a running limitation noted by the CI as a major reason he could no longer participate due to his ankle condition and included both conditions in both the NARSUM and the permanent profile.  Finally, there were separate and distinct profile restrictions imposed as applicable for the back and ankle.  All members therefore agreed that each condition should be conceded as reasonably separately unfitting, and the Board is forwarding separate rating recommendations as follows.

Right Ankle Condition.  The NARSUM notes the CI had a long history of ankle sprains.  In August 2001, the CI had ankle X-rays that showed bony hypertrophy of the dorsal aspect of the right talus consistent with talar beaking, and in September 2001, CT scans showed bilateral degenerative joint disease (DJD) changes of each ankle, with small cortical spurs and small pieces of old avulsed bone of each ankle.  By September 2001, the CI was prescribed a right ankle brace.  In January 2002 the CI underwent diagnostic arthroscopy of the right ankle.  He was diagnosed with chondromalacia of the posterior medial talus with an anterior tibial osteophyte and a talar neck osteophyte.  All were debrided and he underwent reconstruction of the ligaments of the lateral right ankle.  Despite physical therapy, the CI was never able to improve enough to satisfy the requirements of his MOS, although he could alternately meet the physical fitness requirements.  On 29 October 2002, the CI’s commander cited both ankle and back problems as causes for the CI not meeting the physical requirements of his MOS.  On 2 December 2002, the CI was permanently profiled L3 for both right ankle pain and LBP with expressed limitations of no wearing of the flack vest and no running.

The range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.

Right Ankle ROM	Ortho ~5 Mo. Pre-Sep	*PT ~4 Mo. Pre-Sep	*NARSUM ~3 Mo. Pre-Sep	
Dorsiflexion (0-20⁰)	5⁰	5⁰	5⁰	
Plantar Flexion (0-45⁰)	30⁰	30⁰ (0-50⁰)	30⁰	
Comment	Stiffness and pain.  Some difficulty with job due to ankle soreness.  No focal tenderness or swelling.	“significantly limited in inversion, dorsiflexion, and somewhat limited in plantar flexion”	“Significant limitation with inversion and dorsiflexion;” normal gait; no swelling or erythema	
§4.71a Rating	10%	10%	10%	
*PT exam may have been used for NARSUM, and PT exam normal ROMs were stated ROM.  
At the MEB exam, the CI reported chronic pain and swelling with marked decreased flexibility and ROM in the right ankle.  The MEB physical examiner noted he had a “normal gait” and “his ankle exam was remarkable for the significant limitation with inversion 25⁰ and dorsiflexion 5⁰.”  There was no Compensation and Pension (C&P) exam of record as the CI failed to show for the exam per the service treatment record (STR).

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded 5099-5003, cited (USAPDA) pain policy, and rated the ankle and back together at 0%.  The VA used STR information, coded 5299-5271, ankle, limited motion, noted the disability was not specifically listed in the rating schedule; and rated “analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related,” for moderate limited motion of the ankle for 10%.  The Board considered rating for painful motion IAW VASRD §4.59 compared to the VA approach for chondromalacia diagnosis.  The Board considered the similarity of the ROMs of the three exams of record, and the dorsiflexion and plantar flexion limitations and opined that the ankle met the moderate level of 5271; Ankle, limited motion of: due to the limitation of 5 degrees of 20 degrees of normal dorsiflexion and 30 degrees of 45-50 degrees of normal plantar flexion.  The Board noted that the limitation did not rise to the “marked” limited ROM for 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right ankle condition coded 5271.

Low Back Condition.  The 2002 VASRD coding and rating standards for the spine were changed to an interim §4.71a rating standard effective 23 September 2002 and were in effect at the time of his separation.  Seven months after his separation, the current VASRD rating standards came into effect on 26 September 2003, including a table for thoracolumbar ROM.  The 2002 standards for rating are based on the rater’s interpretation and opinion of ROM impairment regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment measured with an instrument and following a table.  For the reader’s convenience, the 2002 rating codes under discussion in this case are excerpted below.

5292 Spine, limitation of motion of, lumbar:
Severe ...................................................................................................................................................40
Moderate ..............................................................................................................................................20
Slight .....................................................................................................................................................10
5293 Intervertebral disc syndrome:  
With incapacitating episodes having a total duration
   of at least six weeks during the past 12 months .................................................................................60
With incapacitating episodes having a total duration of at least four weeks but less than six
   weeks during the past 12 months .......................................................................................................40
With incapacitating episodes having a total duration of at least two weeks but less than four
   weeks during the past 12 months .......................................................................................................20
With incapacitating episodes having a total duration of at least one week but less than two
   weeks during the past 12 months .......................................................................................................10
5294 Sacro-iliac injury and weakness:
5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive Goldthwaite’s sign, marked limitation
   of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, 
   or narrowing or irregularity of joint space, or some of the above with abnormal
   mobility on forced motion ...................................................................................................................40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in
   standing position .................................................................................................................................20
With characteristic pain on motion .......................................................................................................10
With slight subjective symptoms only .....................................................................................................0

The NARSUM notes the CI reported chronic pain in his low back with onset in November 2001.  Physical therapy (PT) records in September 2002 note the CI complained of his “feet going to sleep in the field with gear on”, with chronic pain in his low back characterized as constant and nagging.  The physical therapist documented that his back was aggravated by “bending forward (wearing) Kevlar and flak jacket, increased with sitting and transitioning from sitting to standing,” before orthopedics recommended he proceed to the MEB on 8 October 2002.  On 1 October 2002, the CI had an electromyogram (EMG) study of both lower extremities that showed no evidence of radiculopathy or neuropathy of the most symptomatic right lower extremity.  A PT follow-up on 16 October 2002 indicated a 60% reduction in pain and 60% overall improvement.  The final PT exam in the STR is summarized below.

The ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.

“Trunk” ROM*	*PT ~4 Mo. Pre-Sep	*NARSUM ~3 Mo. Pre-Sep	
Flexion (0-60⁰ or 90⁰ Normal)	50⁰	50⁰	
Ext (0-25⁰)	10⁰	10⁰	
R Lat Flex (0-25⁰)	20⁰	“equal right and left”	
L Lat Flex (0-25⁰)	20⁰		
Comment	Forward flexion and extension limited (due to) pain	Chronic LBP, no radiculopathy; EMG normal; normal gait 	
§4.71a Rating	10%-20% (see text)	10%-20% (see text)	
* Prior to September 2003, there were no standard VASRD normal lumbar or dorsal (thoracic) ROM values.  Normal ROM was considered that specified by the examiner or historic norms.  No normal ROM was specified by any examiner and historic norms depend on measurement technique and vary from forward flexion of 60⁰ to 90⁰.  Extension and rotation normal ROMs were typically 25⁰.  PT exam may have been used for NARSUM, and normal ROMs were not stated.  

At the MEB exam, the CI reported his chronic LBP had “never totally gone away.”  He was taking no medications and denied radiculopathy.  In terms of his back, the CI noted “particular difficulty wearing a flack vest or swinging a sledge hammer.”  There was no C&P exam of record as the CI failed to show for the exam per the STR.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded 5099-5003, cited (USAPDA) pain policy, and rated the ankle and back together at 0%.  The VA rated chronic lower back pain under 5292; spine, limitation of motion, lumbar, and noted a noncompensable evaluation based on medical evidence of record, and rated 0%.  The Board considered the choice of coding and found the CI had no incapacitating episodes to code 5293, Intervertebral disc syndrome, nor symptoms beyond characteristic pain on motion to code beyond 10% under 5295, lumbosacral strain.  The Board then considered 5292, spine, limitation of motion, lumbar.  Deliberations focused on 10% (“slight”) versus 20% (“moderate”) limitation of lumbar motion.  The Board considered the entirety of the record and adjudged that the CI’s limitation of lumbar motion best met by the 10% (“slight”) criteria and did not rise to the “moderate” (20%) level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic lower back pain condition, coded 5292.

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 was operant in this case and the ankle and back condition(s) were adjudicated independently of that policy by the Board.  In the matter of the service-combined chronic pain, right ankle and low back condition, the Board unanimously recommends that it be rated for two separate unfitting conditions as follows:  right ankle coded 5271 with a disability rating of 10%; and, lower back coded 5292 with a disability rating of 10%; both IAW VASRD §4.71a.  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	
Chronic Ankle Condition	5271	10%	
Chronic Low Back Pain Condition	5292	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120606, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130009561 (PD201200835)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA