RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX.	CASE:  PD-2013-01275
BRANCH OF SERVICE:  Army	BOARD DATE:  20150108
SEPARATION DATE:  20011031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B2P/Airborne Infantryman) medically separated for right ankle pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards however, alternate physical fitness testing was approved.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “chronic right ankle instability,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated his condition as unfitting and rated it at 0% IAW the U.S. Army Physical Disability Agency’s Policy for rating pain.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am not able to stand on my feet for long periods of time which keeps me from doing outside activities.  It inhibits me from being promoted at my current job due to the next level of being on the production floor and standing and walking long periods of time.  I continue to have pain and have had two additional surgeries since the original in February 2001.  I have been through physical therapy and it still continues to bother my abilities.  This affects my lifestyle with my children of not being able to play activities with them that they would like a father to be involved with.  I was unable to continue my service as an Airborne Infantryman, which is what I was devoted to do when I joined the Army. I had recently reenlisted a year prior to my injury and was looking forward to my career in the Army.”

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 right ankle condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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.

RATING COMPARISON:

Service IPEB – Dated 20010821	VA - (2.5 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Ankle…	5099-5003	0%	Right Ankle Condition	5271	10%	20020115	
Other x 0 (Not In Scope)	Other x 3	
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20020211 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Ankle Condition.  This condition began in February 2001 after a parachute jump that resulted in a fracture.  The CI underwent open reduction and internal fixation surgery soon after the injury with good results.  Two months later, surgical screws were partially removed due to irritation; there was evidence of inflammation but no evidence of infection (screws remained at the distal aspect of the tibia and the distal aspect of the fibula).  Antibiotics were prescribed preventatively.  The CI participated in physical therapy and was treated with non-narcotic pain medications, with some relief.  Orthopedic entry dated 14 May 2001, approximately 5 months prior to separation, recorded full range-of-motion (ROM) and pain on eversion.  Ankle instability was not recorded in any of the treatment records prior to separation.  At the narrative summary exam on 20 July 2001 (3 months prior to separation), the CI noted he had pain and some swelling in the right ankle, which was aggravated by prolonged walking and running.  Physical examination of the right ankle was significant for moderate swelling and tenderness about the surgical scar.  Right ankle dorsiflexion was recorded at 10 degrees (20), and plantar flexion of 45 degrees (45).  Muscle strength, was normal and there was no evidence of any motor or sensory deficits.  The examiner noted pain on heel walking, and did not record evidence of right ankle instability.  At the VA Compensation and Pension examination on 15 January 2002, 3 months after separation; the CI reported continued swelling and decreased motion in the right ankle.  He stated he could stand on the leg for only 4-5 hours due to pain.  Right ankle ROM recorded 30 degrees of dorsiflexion (20), and 35 degrees of plantar flexion.  No other clinical findings related to the right ankle were recorded.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle pain condition at 0% coded 5003.  The VA assigned an evaluation of 10% coded 5271 (limitation of motion, moderate).  The higher rating of 20% requires evidence of marked limitation of the ankle or ankylosis, which was not supported by the evidence of record.  The Board considered the application of §4.40; however, noted it could not be applied in this case since there were no objective clinical findings of muscle atrophy, or functional loss of the right ankle.  There was no evidence of ankle instability to support the use of any other VARSD ankle code.  The Board next considered the application of VASRD §4.59, and all Board members agreed, the condition met criteria for the minimal compensable rating of 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% coded 5003 IAW VASRD §4.59 for the right ankle pain 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.  As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating right ankle condition was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the chronic right ankle pain condition, the Board unanimously recommends a disability rating of 10%, coded 5003 IAW VASRD §4.59.  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 Pain, Right Ankle	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131014, w/atchs
Exhibit B.  DD Form 294, dated 20130909, w/atchs
Exhibit C.  Service Treatment Record
Exhibit D.  Department of Veterans Affairs Treatment Record

		

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20150007429 (PD201301275)

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 10% 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		     

CF: 
(  ) DoD PDBR
(  ) DVA