RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1200944
BRANCH OF SERVICE:  Army	BOARD DATE:  20130508
SEPARATION DATE:  20030124

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (51R/Electrician), medically separated for chronic left ankle and knee pain.  In August of 2000 the CI injured his left ankle.  This was first diagnosed as a sprain and underwent physical therapy and given a profile.  The CI deployed to Kosovo and reinjured his ankle in March of 2001.  The CI went through a stabilization procedure and 5th metatarsal base reduction.  He underwent physical therapy and was on crutches for 5 months and later improved.  The CI was also diagnosed with Osgood-Schlatter disease on his left knee.  The CI 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 MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication.  The PEB adjudicated the chronic left ankle and knee pain conditions as unfitting, rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated.  The CI requested an update of the case be sent to Representative R---.

CI CONTENTION:  “Cannot maintain gainful employment due to constant re-injury and secondary issues including mental health secondary to service connection.  I have been able to get great jobs my first entry where after 2 ½ years I had to have surgery and unable to return to work due to possibility of re-aggravating service connection a most recently after five years had to leave my job as a police officer due to service connected injury being re-adjudicated.”

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 conditions chronic left ankle and knee pain as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, as the ratings for the unfitting conditions.  The other requested condition, mental health is 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 Board for Correction of Military Records.  The Board acknowledges the CI’s contention 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 (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  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.

RATING COMPARISON:  

Service IPEB – Dated 20021126	VA*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Ankle and Knee Pain	5099-5003	10%	Left Knee Instability and Pain Associated with Left Ankle, Status Post Fifth Metatarsal Resection (claimed as right) Secondary to Sprain	5257	0%	STR	
			Left Ankle, Status Post Fifth Metatarsal Resection (claimed as right), Secondary to Sprain	5271	0%	STR	
No Additional MEB/PEB Entries	Other x 0	
Combined:  10%	Combined:  0%	
*Derived from VA Rating, dated 20040319 (most proximate to the date of separation)

ANALYSIS SUMMARY:

Chronic Left Ankle and Left Knee Pain Condition.  The narrative summary (NARSUM) notes the CI injured his left ankle in Germany in August of 2000.  This was first diagnosed as a sprain and he underwent physical therapy, was given a profile and temporarily improved.  He was sent to Kosovo where he reinjured his ankle again in March of 2001 and was sent back to Germany where he was seen by podiatry and was diagnosed with left ankle instability.  In May of 2001, he had a stabilization procedure done and 5th metatarsal base resection.  Following this he underwent physical therapy, was on crutches for about 4 to 5 months and he improved and was able to do regular physical training.  Later his left knee also started to bother him with pain.  He had a previous history of Osgood-Schlatter disease on this knee.  He was given a P2 profile, still performing construction work.  He PCSd to Ft. Polk and still had problems with his left knee and left ankle "giving out."  He was seen by orthopedics in August 2002 and was recommended to the MEB.  On 26 August 2002, the CI was permanently profiled L3 for chronic ankle and knee pain.  On 30 September 2002, the CI’s commander stated he “injured his (left) knee and (left) ankle in August of 2000 while moving boxes in a CONEX while stationed in Germany,” and “reinjured his knee and ankle while dismounting a troop carrier in Kosovo in February of 2001” and his injuries precluded him from working in his MOS.  The commander noted he “cannot run, wear a Backpack and cannot jump into a Foxhole.”  And he was “non-deployable in his current physical condition.”

At the MEB exam, the CI reported no improvement in pain despite surgery and physical therapy.  The MEB physical exam noted the CI had “mild instability to varus and valgus movements of left knee,” with “a palpable prominence at the tibial tuberosity below the left patella most probably from Osgood-Schlatter disease.”  Left knee range-of-motion (ROM) was flexion of 130 degrees (130 degrees on the right as well; 140 degrees normal) and extension of 0 degrees (normal 0 degrees).  The examiner also found that the CI had “some tenderness in the left lateral malleolus and Achilles tendon on the left ankle.”  Left ankle ROM was dorsiflexion 10 degrees (normal 20 degrees) and plantar flexion 60 degrees (normal 45 degrees), both similar to the right ankle.  There was decreased inversion and eversion compared to the right ankle.  There was no mention of pain or repeated motion on ROM testing.  The examiner stated present condition was “(The CI) is very limited in his physical profile, he cannot lift over 40 pounds, can't crawl and can't do concrete work and not doing his regular MOS as an electrician.”

There was no VA Compensation and Pension (C&P) exam proximate to the date of separation (CI did not show for the exam).  Records document left ankle surgery in July 2005, (2 years post-separation) for instability.  VA records indicate a re-injury in June 2008, and the first C&P in 2009 was after that injury and over 6 years remote from separation.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB combined the chronic left ankle and knee pain conditions under a single disability rating, coded analogously to 5003 IAW the USAPDA pain policy.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for service rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  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.

The Board considered that the left ankle condition post-surgery was clearly reasonably unfitting and deliberated if the left knee pain condition was reasonably unfitting given the few clinic references to knee pain.  Profile restriction, commander’s comments, and the NARSUM implicated both the ankle and the knee as significantly contributing to duty impairment.  Members agreed that the functional limitations in evidence justified the conclusion that the knee condition was integral to the CI’s inability to perform his MOS; and, accordingly it was reasonably unfitting.

The Board noted the VA split the conditions and rated left knee instability and pain associated with left ankle, status post fifth metatarsal resection (claimed as right) secondary to sprain coded as 5257 for 0%; and left ankle, status post fifth metatarsal resection (claimed as right), secondary to sprain coded 5271 for 0%.  In both cases a noncompensable evaluation was assigned for less than ratable findings under each code, using the service treatment records as evidence and specifying that residuals could not be assessed as the CI had not reported for VA examination.  Post-separation surgery and VA exams multiple years remote from separation were noted, but had little probative value for rating at the time of separation.

The Board examined the record to determine if there was sufficient evidence for coding each joint at 10% or higher.  Neither joint had limited ROM to a compensable level under the specific joint coding.  The Board considered the potential of coding the left knee separately at 10% analogously to 5262-5257 (tibia and fibula impairment-knee other impairment) for Osgood-Schlatter's disease and mild instability with painful motion versus coding 5099-5003 for painful motion; and rating the left ankle at 10% conceding painful motion IAW VASRD §4.59.  The Board deliberated if the record support that the ankle limitation of motion was objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, or the functional loss (IAW VASRD §4.40) was sufficient to concede equivalency for a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.40 (functional loss), the Board recommends that the left ankle and left knee be individually unfitting and rated with disability rating of 10% for the left ankle condition and 10% for the left knee condition, each coded as 5099-5003.

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 left ankle and knee conditions was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the left ankle and left knee conditions, the Board unanimously recommends that each joint be separately rated as follows:  an unfitting left ankle condition coded 5099-5003 and rated 10%, and an unfitting left knee condition, coded 5099-5003 and rated 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 Left Ankle Pain Condition	5099-5003	10%	
Chronic Left Knee Pain Condition	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120616, 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 AR20130011454 (PD201200944)

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