RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01402
BRANCH OF SERVICE:  Army	BOARD DATE:  20141126
SEPARATION DATE:  20040626

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (15U/Chinook Crew Chief) medically separated for a right ankle condition.  The right ankle could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty; however she could do an alternate event for her physical fitness test.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The ankle condition, characterized as “right ankle pain after modified Brostrom reconstruction,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic pain, right ankle” as unfitting, rated at 10%, citing criteria the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “My ankle injury causes me daily pains and severely limits the types of duties I can perform with my law enforcement profession.  I am constantly re-injuring the ankle which has led to a lot of time off work to recover.  This injury has also led to other medical problems involving my knee and hip, which in turn affects my spinal alignment causing almost constant pain.  I have been seen at the Ft. Hansom Emergency room on numerous occasions for this ankle after falling and tearing tendons.  I have also been placed in a walking cast on 3 separate occasions in the past two years.  This ankle (according to VA physician) needs to be fused.  That however in not an option for me with my job requirements.”

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; however, the contended knee, hip and back conditions are not 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.

The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; 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 (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20040603	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Ankle	5099-5003	10%	Right Ankle Instability, Post Brostrum Reconstruction	5024-5271	10%	STRs	
Other x 0 (Not in Scope)	Other x 0		
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20040715 (most proximate to date of separation)

ANALYSIS SUMMARY:

Chronic Right Ankle Pain.  The CI experienced recurrent right ankle sprains following an initial ankle injury in basic training.  Orthopedic examination in November 2001 noted the presence of right ankle ligamentous instability.  Magnetic resonance imaging (MRI) performed on 7 January 2002, showed a complete tear of the ligament connecting the end of the fibula (leg bone on the outer side of the lower leg) to the talus bone of the ankle.  The MRI also indicated a possible tear of another ligament in the same location connecting the tip of the fibula to the calcaneus (heel bone).  The CI underwent surgery on 13 March 2002 to reattach the torn ligaments back on the end of the fibula.  She had a satisfactory recovery and at the time of a 20 June 2002 physical therapy examination, range-of-motion was full without pain.  Strength was normal.  The CI deployed to Iraq from 11 February 2003 to 1 August 2003.  Following return, the CI sought care in the orthopedics clinic in September 2003, for persistent pain with activity and subjective lateral instability (tendency to roll the ankle).  An MRI on 1 December 2003 showed retained orthopedic hardware with some fluid around the posterior tibial tendon consistent with tenosynovitis.  The MRI was otherwise normal with intact ligaments.  The orthopedic clinic follow up on 5 December 2003, noted the MRI results.  The CI reported pain with running, standing, climbing and jumping.  On examination there was slight increased anterior translation indicating residual ligament laxity.  Strength was normal.  The orthopedic MEB narrative summary (NARSUM) examination on 16 April 2004, noted the CI continued to experience ankle pain that interfered with running, jumping, climbing, marching, standing for prolonged period of time, or walking long distances.  On examination, dorsiflexion was 5 degrees (normal 20 degrees) and plantar flexion 50 degrees (normal 45 degrees).  There was slight ligament laxity (1+) with intact normal strength.  There was no VA Compensation and Pension examination proximate to separation and the VA utilized the data from the service treatment record for its rating.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic ankle pain 10% with application of the USAPDA pain policy.  The VA rated the right ankle condition (right ankle instability) 10%, coded 5024-5271 (tenosynovitis - limitation of ankle motion) citing instability and limitation of motion that was not more than moderate.  The right ankle limitation of motion recorded at the time of the MEB NARSUM examination was mild.  However, there was pain with use and mild ligamentous laxity supporting a 10% rating for functional loss (§4.40).  All members agreed the limitation of motion was not marked to support the next higher rating under 5271.  The Board considered whether ratings under the VA Schedule for Rating Disabilities (VASRD) code for other foot injuries (5284) provided for a higher rating (§4.7) however all Board members agreed that the moderately severe level (20%) was not supported.  After due deliberation, considering all of the evidence and 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 ankle 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 for rating the chronic right ankle pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic right ankle pain 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 20130914, 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 XXXXXXXXXXXXXX, AR20150006444 (PD201301402)

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