RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301348
BRANCH OF SERVICE:  Army	BOARD DATE:  20140318
Date of SEPARATION:  20041203

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve PV1/E-1 (91R/Veterinary Food Inspection Specialist) medically separated for a right ankle condition.  He sustained a non-surgical fracture of the right medial malleolus during basic training and, the condition could not be adequately rehabilitated to meet the physical demands of continued training and military service.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right ankle condition, characterized as “healed fracture of right medial malleolus” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “fracture of right medial malleolus sustained in training” as unfitting, rated 0%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Bone not properly healed; soft or spongy”

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; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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.  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 20041028	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fracture, Right Medial Malleolus	5099-5003	0%	Residuals, Fracture R Malleolus	5299-5271	10%	STR	
No Additional MEB/PEB Entries	Other x 0	STR	
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20041222 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Ankle Condition.  The CI sustained the above fracture on 22 July 2004 (5 months prior to separation) when he fell 20 feet from atop the rope of an obstacle course in basic training.  There was minimal displacement and he was treated with a cast and progressive weight bearing.  The final X-ray demonstrated a healed fracture of the right medial malleolus, displaced less than 2 millimeters (marginal), and judged to be in “excellent position” by the MEB orthopedist.  The narrative summary (NARSUM) notes persistent medial pain “worse since the cast is off,” and use of a brace.  It was noted that the CI could not wear boots or run and the orthopedist did not recommend a waiver for continued service.  The physical exam noted an antalgic gait with inability to place weight on the heel; some mild medial swelling, but “no deformity, effusion or tenderness”; and, documented that the joint was stable.  The only reference to range-of-motion (ROM) was that “he has regained full motion.”  There was no comment regarding painful motion or ROMs at the time of the final DD Form 2808, but the NARSUM does specify “motion is limited by pain” in reference to an earlier exam.  Although not applied to the initial VARD, a VA Compensation and Pension (C&P) examination was performed in May 2005 (5 months after separation).  It was noted that the CI continued to use an ankle brace, but was employed with a job requiring prolonged standing.  The exam documented significant tenderness, but normal strength and stability.  The ROM measurements were dorsiflexion to 15 degrees (normal 20 degrees) and plantar flexion 45 degrees (normal); specifying painful motion, but no DeLuca findings.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating analogously to 5003 (degenerative arthritis) rested on the absence of ROM limitation and did not recognize painful motion.  The VA’s 10% rating under 5271 (limited motion) was based on service evidence and specifically invoked painful motion to achieve the minimum 10% rating IAW VASRD §4.59 (painful motion).  There is no compensable ROM or other ratable findings to achieve a rating higher than 10% via any code available under VASRD §4.71a.  Although painful motion was neither reported nor denied in the context of the final service examination; antalgic gait was noted.  Members agreed that the documented presence of painful motion before and after that examination (NARSUM comment and C&P) and clinical likelihood, are satisfactory support for conceding application of §4.59 to rating.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a rating of 10% for the right ankle condition.  Given the absence of a more favorable code, the PEB designated code remains applicable.

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 right ankle condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 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	
Fracture, Right Medial Malleolus	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130911, 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, AR20140016348 (PD201301348)

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