RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
TDRL SEPARATION DATE: 20021211
NAME: XXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200912
BOARD DATE: 20121218
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SGT/E‐5 (96B2P/Intelligence Analyst), medically
separated for a history of osteomyelitis left distal tibia and fibula. The CI first began
experiencing left lower extremity and ankle pain when involved in a motorcycle accident. At
this time, he was diagnosed with a closed left distal fibular and tibial fracture. The
osteomyelitis left distal tibia and fibula condition could not be adequately rehabilitated for the
CI to meet the physical requirements of his Military Occupational Specialty (MOS) or to satisfy
physical fitness standards. He was issued a permanent L3 profile and referred for a Medical
Evaluation Board (MEB). The MEB forwarded left ankle degenerative joint disease (DJD),
posttraumatic condition and left distal fibular and medial malleolar fracture status post (s/p)
open reduction, internal fixation (ORIF) with resulting chronic pain and postoperative
osteomyelitis (in remission) conditions for Physical Evaluation Board (PEB) adjudication. The
PEB adjudicated the osteomyelitis left distal tibia and fibula condition and the posttraumatic
joint disease left ankle, as unfitting, rated 20% and 10% respectively and the CI was placed on
the Temporary Disability Retired List (TDRL). The CI was re‐evaluated on 29 July 2002 and was
given a 20% disability rating by the PEB and was removed from the TDRL. The CI made no
appeals, and was medically separated with a 20% disability rating.
CI CONTENTION: “Condition is progressively worse. Chronic persistant (sic) pain and swelling.
Sharp acute pain periodically. Request to be placed on full permanent retirement. Depression
result of PTSD Service Connected—demand this be corrected/reflected in record.”
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 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, i.e. depression and PTSD, remain
eligible for future consideration by the Army Board for Correction of Military Records.
TDRL RATING COMPARISON:
Service IPEB – Dated 20021015
VA – All Effective Date 20000519
Condition
On TDRL – 20000404
History of Osteomyelitis
Post Traumatic Joint
Disease Left Ankle
Code
5000
5010
Rating
TDRL
20%
Sep.
20%
10%
N/A
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 20%
Condition
Code
Rating
Exam
Fracture left Distal Tibia and
Fibula
Scars, Left Lower Extremity
5010‐5271
7804
Not Service Connected x 2
Combined: 30%*
20%
10%
20000519
20000519
20000519
*Major Depression, 9434, @50% added effective 20090824 (combined 60%)
ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application
regarding the significant impairment with which his service‐incurred conditions continue to
burden him. The Board wishes to clarify that it is subject to the same laws for disability
entitlements as those under which the Disability Evaluation System (DES) operates. The DES
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 (Title 38, United States Code). The Board evaluates DVA evidence
proximate to separation in arriving at its recommendations, but its authority resides in
evaluating the fairness of fitness decisions and rating determinations for disability at the time of
separation. DoDI 6040.44 specifies a 12‐month interval for special consideration to DVA
findings.
While the DES considers all of the service member's medical conditions,
compensation can only be offered for those medical conditions that cut short the member’s
career; and the Board’s assessment of fitness determinations is premised on the MOS‐specific
functional limitations in evidence at the time of separation. The DVA, however, is empowered
to compensate service‐connected conditions and to periodically re‐evaluate said conditions for
the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary
over time.
History of Osteomyelitis Left Distal Tibia and Fibula Condition. The CI was involved in a
motorcycle accident 29 September 1996 when he incurred a closed left distal fibular and tibial
fracture. He underwent ORIF of the distal fibular and medial malleolar fracture. Three months
post‐operatively he continued to have pain and, while there was no obvious infection, he
underwent pin removal. A month later in February 1997 in follow‐up he was noted to have
medial wound full thickness skin loss and serous drainage; X‐rays showed only osteopenia
without changes of osteomyelitis. Eight months after the initial event in June 1997, according
to the orthopedist, his wound was “all but healed” with normal ankle range‐of‐motion (ROM)
without swelling. A year later, in September 1998, he presented with pain for 8 months
without known acute injury. Physical examination revealed edema and erythema with reported
normal ROM. He was diagnosed with ankle abscess and treated with incision and drainage and
oral antibiotics. In February 1999 he was seen by Orthopedics for chronic sinus drainage on the
medial malleolar incision and pain for 18 months and was diagnosed with osteomyelitis based
on his clinical condition of a chronically open wound and increased uptake on bone scan. On
13 April 1999, he underwent hardware removal and debridement of the left distal fibula and
the draining medial malleolar site. After 6 weeks of IV antibiotics, in May 1999, he underwent
another irrigation and debridement with delayed primary closure of the wound. In follow up in
June his wound had “not completely closed.” In September 1999, Orthopedics noted that the
member continued to have recurrent pain and swelling of his lower leg and he was referred to
physical therapy (PT) for rehabilitation. When he was unable to improve his ROM without
subjective complaints of pain and swelling, the CI was referred to the MEB.
2 PD1200912
The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating
recommendation, with documentation of additional ratable criteria, are summarized in the
chart below.
Ankle ROM
Dorsiflexion (0‐20⁰)
Plantar Flexion (0‐45⁰)
Inversion (25‐30)
Eversion (5‐10)
Comments for Left only
Right
MEB ~1 Mos. Pre‐TDRL*
(20000301)
Left
‐5
30
5
0
5
30
20
0
Tender to palpation over
medial malleolus & distal
fibula. Constant pain with
motion, esp with wt
bearing dorsiflexion;
MRI: arthritic changes at
left ankle and bony defects
in L distal tibia
20% (PEB 20% + 10%)
VA C&P ~1 Mo. Post TDRL Entry
(20000519)
MEB ~3 Mos. Pre‐TDRL Exit*
(20020729)
Left
5⁰
25⁰
0
5
Left*
‐5
35⁰
15
0
Right
5
30
20
5
“5 degrees of dorsiflexion”
All motions cause discomfort.
No swelling, erythema,
drainage. Obvious bony defect
at medial distal fibula.
Tender along mid aspect of
Reports ‘severe pain with
ambulation’; strength 4+/5;
no instability; no effusion;
mild antalgic gait from
internal rot’n deformity so
walks on lateral column of
longitudinal scar
20% (VA 20%)
foot (see text)
20% (PEB 20%)
§4.71a Ratings (see text)
* Ortho MEB for TDRL entry stated ROM 0‐25⁰; PT ROMs charted from same day
* PEB cover sheet listed ROMs at TDRL exit were charted. TDRL exit NARSUM stated 0‐15⁰
The pre‐TDRL entry MEB/PT exam and the VA Compensation and Pension (C&P) exam
proximate to TDRL entry are summarized above. At the MEB exam at the conclusion of TDRL
after 2 years, 3 months prior to separation, the CI reported severe pain with attempts at
running and walking. The MEB physical exam noted no instability, and no effusion. The CI had
a mildly antalgic gait from internal rotational deformity and he was noted to walk on the lateral
column of his foot. He had decreased ROM of the left ankle as noted, with continued marked
limited ROM of 0‐15 degrees per Orthopedic MEB exam [PEB ‐5‐35 degrees]. There was not a
C&P exam proximate to the conclusion of TDRL.
Note (2): The 20 percent rating on the basis of activity within the past 5 years is not assignable following the initial
infection of active osteomyelitis with no subsequent reactivation. The prerequisite for this historical rating is an
established recurrent osteomyelitis. To qualify for the 10 percent rating, 2 or more episodes following the initial
infection are required. This 20 percent rating or the 10 percent rating, when applicable, will be assigned once only to
cover disability at all sites of previously active infection with a future ending date in the case of the 20 percent rating.
Based on the above evidence, the Board directed its attention to its rating recommendation for
the left ankle and lower leg condition. It first considered the MEB’s coding choice of 5000,
Osteomyelitis for TDRL entry. As per VASRD §4.43, osteomyelitis is considered a continuously
disabling process. At DOS the CI had a recent documented history of a discharging sinus within
the prior 5 years, and his unfitting condition was rated 20% by the PEB; according to the PEB
proceedings, he was “placed on TDRL due to short time since clearing of osteomyelitis.” Code
5000, Note (2) states “The 20 percent rating on the basis of activity within the past 5 years is
not assignable following the initial infection of active osteomyelitis with no subsequent
reactivation.” The Board considered that the TDRL‐entry may reasonably be considered as the
“initial infection” time frame. A 30% rating would require definite involucrum (layer of new
bone growth outside existing bone) or sequestrum (a piece of dead bone that has become
separated during the process of necrosis from normal bone), neither of which was present.
According to DC 5000 Note (1): partial ratings of 30 percent or less are to be combined with
ratings for ankylosis, limited motion, nonunion or malunion, shortening, etc. It is reasonable to
assume that the PEB was hopeful that a trial of a TDRL time period for observation of
recurrence and recovery was warranted and applied application of coding osteomyelitis code
5000 at 20% and 5010 at 10% to reach the 30% rating required to pursue that approach. The
PEB TDRL entry coding and rating for the ankle and osteomyelitis conditions was considered
reasonable and IAW VASRD guidelines by the Board.
3 PD1200912
The Board then directed its attention to the TDRL exit rating. At TDRL exit, the provisions of
code 5000 Note (2) for rating 20% were not met, as the CI did not have “established recurrent
osteomyelitis.” The IPEB removed DC 5010 at TDRL completion in 2002 without specifically
rating the ankle pain or limited motion, but noted the ROMS and indicated “left ankle cannot
be separately rated because of pyramiding.” According to DC 5000 Note (1): 10 percent rating
and the other partial ratings of 30 percent or less are to be combined with ratings for ankylosis,
limited motion, nonunion or malunion, shortening, etc… If the osteomyelitis diagnosis 5000
were to stand, the CI’s limited ROM would be combined with (not subsumed under) the rating
for osteomyelitis.
The Board considered the CI’s entire left lower extremity disability for rating and considered the
degenerative arthritis confirmed by X‐ray, gait abnormality which was not present at TDRL
entry, the limited ROMs, and the internal rotation deformity with walking on the lateral column
of the foot and determined that this did not approach the disability picture for rating equivalent
to loss of the foot (40%). The Board deliberated at length between rating under code 5262
(tibia and fibula impairment) for ankle disability of moderate (20%) or marked (30%), or coding
under 5271 (ankle limitation of motion) as marked (20%). The Board agreed that the 5262 code
was most representative of the CI’s injury, i.e. fracture, infection and dysmorphic healing of the
tibia and fibula compared with mere ankle limitation of motion as per code 5271. The Board
discussed the orthopedic examiner’s description of ‘mildly’ antalgic gait and its meaning with
the description of walking in the context of the disability rating.
The Board then considered the left lower extremity scars which were coded 7804 by C&P exam.
By precedent, the Board does not recommend separation rating for scars unless their presence
imposes a direct limitation on fitness. In order to be considered unfitting, scars must contribute
to a decrease in functionality. In review of each physical examination both prior to TDRL entry
and after TDRL entry there was no evidence to support the scar’s interference with ROM and
thus the scars are not considered unfitting.
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable
doubt), the Board majority recommends a TDRL exit rating of 20% for the left ankle condition
due to moderate ankle disability, coded 5010‐5262.
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. In the matter of the
history of osteomyelitis
left distal tibia and fibula condition, the Board unanimously
recommends no change in the PEB adjudication for entry into TDRL. On exit from TDRL, the
Board by a 2:1 vote recommends an unfitting ankle disability coded 5010‐5261 rated 20% IAW
VASRD §4.71a. The single voter for dissent (who recommended a permanent ankle disability
rating of 30%) submitted the appended minority opinion. The Board unanimously agrees that
there were no other conditions eligible for Board consideration which could be recommended
as additionally unfitting for rating at separation.
4 PD1200912
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
TDRL PERMANENT
20%
10%
30%
20%
20%
‐
5000
5010‐5262
COMBINED
Osteomyelitis
Post traumatic joint disease left ankle
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120615, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
XXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
5 PD1200912
MINORITY OPINION. The AO physician strongly recommends a permanent rating of 30% coded
5010‐5262 (Tibia and fibula, impairment) for marked ankle disability.
The Board was in agreement on TDRL‐entry rating, that the PEB TDRL‐exit rating using code
5000 was not IAW VASRD guidelines, and that rating at exit under code 5010‐5262 was correct.
The critical difference was in the disability rating‐level of the MEB exam at TDRL‐exit for
permanent separation rating.
The CI had fractures of his tibia and fibula (lower leg bones at the ankle) with surgeries, bone
infections (osteomyelitis), and degenerative changes in the ankle. Although the osteomyelitis
did not have multiple recurrences, the lower leg/ankle disability increased during the TDRL
period to the point where the CI limped, and had a markedly abnormal foot placement while
walking. The orthopedic specialist examiner stated “He walks on the lateral column of his foot
with an internal rotation deformity and a mildly antalgic gait. He has metatarsus primus varus
on exam.” Slight weakness and 2‐3+ tenderness were also documented with an ROM of
dorsiflexion to 0 degrees and plantar flexion to 15 degrees.
The CI’s disability picture is clearly much more severe than only the marked limitation of
motion of the ankle (5271 at 20%). Walking on the lateral column of the foot with limited ankle
ROM with an inability to lift the foot above a neutral position and ankle weakness clearly
supported a marked (30%) versus moderate (20%) ankle disability.
Given consideration of VASRD §4.3 (reasonable doubt), 4.7 (higher of two evaluations), §4.40
(functional loss), §4.45 (the joints) and IAW §4.71a, the CI's permanent separation rating should
be at 30% coded 5010‐5262.
The AO strongly recommends that the CI’s prior determination be modified as follows; and, that
the discharge with severance pay be recharacterized to reflect permanent disability retirement,
effective as of the date of his prior medical separation:
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXX, AR20130000617 (PD201200912)
6 PD1200912
UNFITTING CONDITION
Osteomyelitis
Post traumatic joint disease left ankle
SFMR‐RB
VASRD CODE
5000
5010
5010‐5262
COMBINED
RATING
TDRL PERMANENT
20%
10%
30%
30%
30%
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 description without modification of the
assigned rating or 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
XXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
7 PD1200912
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