RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxx BRANCH OF SERVICE: AIR FORCE

CASE NUMBER: PD1200033 SEPARATION DATE: 20090428

BOARD DATE: 20120801

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-5 (2A775, Low Observable Aircraft Structural Maintenance Craftsman), medically separated for peroneal tendonitis. The CI developed chronic left peroneal tendonitis that did not respond adequately to conservative treatment and multiple surgeries. The CI continued to have significant pain and functional limitations and was unable to meet the physical requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards. He was issued a placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the peroneal tendonitis condition as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% combined disability rating.

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CI CONTENTION: “SSgt D was under treatment for other injuries and should have been evaluated on all injuries, not just the one he was originally MEB separated [sic]. Members [sic] knee and back were connected to the problem with his ankle. SSgt D was also showing signs of carpol [sic] tunnel and artheritous [sic] in both his wrist was treated with the most favored 800mg Motirn [sic] for years and cause [sic] him to develop acid reflux. Has learned that he suffers from PTSD and depression and is under treatment for PTSD at Oklahoma Veterans Hospital. SSgt D has been rated by the VA at 30% and has other service connected issues to include PTSD, depression, hand and nerv [sic] issues, carpal tunnel, hearing loss, and tinnitus (ringing in his ears) all under review with a possibility of a 60-80% disability rating for service connected disabilities.”

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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 remaining conditions rated by the VA at separation and contended on the DD Form 294 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 Air Force Board for the Correction of Military Records.

RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. 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. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation and is limited to conditions adjudicated by the PEB as either unfitting or not unfitting. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Peroneal tendonitis. Although the CI injured his left ankle at age 17 and was treated with a cam walker for six weeks, he was asymptomatic and able to complete all physical requirements when he entered service at age 21. He developed left knee pain after increasing his running in 2003. In 2006 his therapist noticed left ankle laxity was causing both left ankle and left knee pain. He was also having swelling after running. A magnetic resonance imaging (MRI) performed in August 2006 showed chronic anterior talofibular ligament tear and he underwent surgery in October 2006 for posterior superficial peroneal retinacular reconstruction with fibular groove deepening. He did well with physical therapy after surgery and was able to deploy to Iraq from May to June 2007. However, while in Iraq he stepped in a hole and rolled his ankle. He was able to finish his tour but after he returned he had another surgery. Another MRI was done in January 2008. On 7 February 2008, he underwent repair of his peroneus brevis tendonesis with calcaneal exostectomy. He subsequently had an infection and needed removal of a foreign body on 20 March 2008. He then had rehabilitation with physical therapy. Neither MRI report is available in the record available for review but both are mentioned in the MEB narrative summary (NARSUM) performed on 16 October 2008.

At the time of the MEB NARSUM examination, approximately 6 months prior to separation, the CI reported that although his ankle weakness had improved after the surgery, he continued to have weakness. He had persistent burning pain in his lateral foot every time he took a step and had just been referred for orthotics. He reported he was able to walk most of the day but had pain with any running. He had pain with any running and could only endure it for 100 to 200 yards. Prolonged standing also increased his pain and he was unable to support weight on his legs as required when doing push-ups. He also had pain that woke him up from sleeping. He was taking nonsteroidal anti-inflammatory medications. Physical examination included findings of tenderness anterior to the left lateral malleolus, a high rigid arch of the left foot, and normal gait and balance. A left lateral ankle scar was well-healed, distal pulses were intact, and the left foot was warm and perfused. No ankle range-of-motion (ROM) or motor, sensory, or reflex examinations was recorded. A VA Compensation and Pension (C&P) examination, completed approximately 2 months after separation, documented a constant burning, aching, sharp, and sticking pain in the left ankle. The pain was rated at 9/10, was elicited by activity and relieved by rest and nonsteroidal anti-inflammatory medication as needed. At the time of pain the CI was able to function. The CI reported weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, and fatigability. The CI had a hard time walking and moving around. At the time of this examination he was employed as a delivery driver. The examination revealed a scar on the left ankle that was not painful and there was no limitation of function due to the scar. Gait and posture was normal, including tandem gait. The left ankle examination documented effusion and weakness. There was no edema, tenderness, redness, heat, guarding of movement, subluxation, or subluxation. After repetitive motion the left ankle was additionally limited by pain, fatigue, weakness, lack of endurance, and pain with pain as the major functional impairment. There was no additional limitation in degree. The ROM are in the chart below.

There is one goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. As mentioned above no ROM measurements were included in the MEB NARSUM, and there are no ROM measurements available for review from any time close to the time of separation.

Although the PEB and the VA used different coding options, both rated the CI’s peroneal tendonitis/left ankle sprain at a 10% disability. After due deliberation, exploring all coding options, considering all of the evidence, and remaining mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the peroneal tendonitis condition.

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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the peroneal tendonitis condition, the Board unanimously recommends a disability rating of 10%, coded 5311 IAW VASRD §4.73. There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20111217, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

President

Physical Disability Board of Review

SAF/MRB

1500 West Perimeter Road, Suite 3700

Joint Base Andrews MD 20762

Dear xxxxxxxxxxx:

Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §1554a), PDBR Case Number PD-2012-00033

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate. Accordingly, the Board recommended no re-characterization or modification of your separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board. I concur with that finding and their conclusion that re-characterization of your separation is not warranted. Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Director

Air Force Review Boards Agency

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