RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

name: XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01329
BRANCH OF SERVICE:  Army	BOARD DATE:  20141031
SEPARATION DATE:  20040928

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (11B/Infantry), medically separated for chronic left ankle pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty; however, his profile indicated he could do an alternate physical training test.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The ankle condition, characterized as “chronic left ankle pain,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic pain, left ankle” as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am now having to wear a brace on my left leg.  My ankle gives way and I fall. I am being out sourced to a private orthopedic specialist by the VA.  I am on medication for constant pain now. Also, I was diagnosed with PTSD [posttraumatic stress disorder] April 22, 2009 at the OPC in Winston-Salem, North Carolina.  Here again this will show in my records.”

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 ankle condition is addressed below; no additional conditions, to include the contended PTSD, 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 20040607	VA - (3 Mos. Pre -Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Lt Ankle	5099-5003	10%	Lt Ankle Fracture s/p Surgical Fixation w/Residual Pain Syndrome	5099-5010	10%	20040323	
Other x 0 (Not in Scope)	Other x 0	20040323	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20041001 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information 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, operating under a different set of laws.

Chronic Left Ankle Pain.  The CI reported left ankle pain after a 4 mile run and twisting injury in November 2003.  Radiographic evaluation demonstrated soft tissue swelling, no acute fracture, some degenerative changes of the ankle joint and mid-foot, and previous open reduction internal fixation (ORIF) of a medial malleolar fracture (the medial malleolus is the lower end of the tibia).  Despite conservative management the CI continued to report left ankle pain.  The narrative summary examination dated 24 March 2004 noted that prior to service the CI sustained a left ankle fracture in which was surgically repaired.  He was asymptomatic when he entered the Army in October 2002.  A podiatric examination noted a well-healed surgical incision on the medial aspect of the left ankle, tenderness to palpation over the medical malleolus and ankle joint line, and pain in the left ankle with toe walk.  A diagnosis of chronic left ankle pain status post medial malleolar fracture with ORIF 2000 was rendered.  The MEB forwarded the chronic left ankle pain condition as existing prior to service (EPTS) and not permanently aggravated.  At the VA Compensation and Pension examination performed 3 months prior to separation, the CI reported daily left ankle pain occurring every few hours for approximately 15 minutes.  The examiner documented a surgical scar on the left ankle and full ankle range-of-motion bilaterally; without additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination.  The examiner rendered a diagnosis of left ankle fracture status post ORIF with residual pain syndrome.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB determined that there was sufficient evidence to support that the chronic ankle pain condition was EPTS, aggravated by service and rendered the Soldier unfit.  The PEB rated the chronic left ankle pain condition at 10% for slight constant pain IAW USAPDA pain policy, coded 5009-5003 analogous to degenerative arthritis.  The VA rated the chronic ankle pain condition at 10% for pain limited motion.  The PEB’s rating was supported by the USAPDA pain policy, but was not compliant with VA Schedule for Rating Disabilities (VASRD) §4.71a criteria.  The Board determined that the objective evidence of pain with motion and radiographic evidence of early degenerative arthritis met criteria for application of VASRD § 4.59 (painful motion) and a 10% disability rating.  The Board deliberated whether there was evidence for a disability rating higher than 10%.  There was no evidence of marked ankle limitation of motion or malunion of the tibia with moderate ankle disability for a 20% rating under VARSD codes 5271 (ankle limited motion) and 5262 (tibia and fibula, impairment of).  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board members agreed that a disability rating of 10% for the chronic ankle pain condition IAW VASRD § 4.59 is appropriate in this case.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

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 chronic left ankle pain was operant in this case and the condition was adjudicated independently of that by the Board.  In the matter of the left ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  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 XXXXXXXXXXXXXXXXXX, AR20150006336 (PD201301329)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA