RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01406
BRANCH OF SERVICE:  army  	BOARD DATE:  20140912
SEPARATION DATE:  20071220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Regular Army/E-5 (63J20/Quartermaster and Chemical Equipment Repairer) who was medically separated for left (foot) navicular avascular necrosis.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The navicular avascular necrosis condition, characterized as “left navicular avascular necrosis,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “avascular necrosis of left navicular” as unfitting, rated at 0% with probable application of the Veterans Affairs Schedule for Rating Disabilities (VASRD), but citing the US Army Physical Disability Policy Guidance Memorandum #12 for analogous codes.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The VA found me to be 30% disabled and requiring surgery.” 

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 left navicular avascular necrosis 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 20071030	VA - (At Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Navicular Avascular Necrosis	5009-5003	0%	Osteoarthritis, Left ankle, Traumatic	5010-5271	10%*	20071207	
Other x 0  (Not in Scope)	Other x 0 (Not in Scope)	20071207	
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20080111 (most proximate to date of separation)
The VA increased the ankle to 20% on the 30 September 2009 VARD and 30% on the 19 January 2011 VARD based on post-separation examinations over one year post separation.  

ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service connected by the VA but not determined to be unfitting by the PEB.  However, the Department of Veteran Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Left Navicular Avascular Necrosis Condition.  The CI was first seen on 20 November 2005, when he reported a history of left ankle pain possible from a sprain.  Possible avascular necrosis (dead bone from the loss of its blood supply) and fracture of the left ankle (navicular and tarsal bones) were noted on X-ray images.  He was apparently treated conservatively and did well until 2007.  A magnetic resonance imaging (MRI) obtained on 25 April 2007 showed post-traumatic changes and degeneration possibly related to old avascular necrosis.  Avascular necrosis of the navicular bone was also shown on X-rays images dated 22 May 2007.  

The narrative summary (NARSUM) dated 18 September 2007, noted that the CI was limited by ankle and foot pain, but instability was “not much of an issue”.  A brace had not been beneficial, although injections had provided temporary relief.  Ankle fusion was discussed, but could not guarantee resolution of the pain and was not performed.  On examination, he had reduced range-of-motion (ROM) in dorsi-flexion (toes up), tenderness to palpation along the ankle joint, and slight laxity in the ligaments in one plane.  He was unable to rise on his toes on the left.

At the VA Compensation and Pension (C&P) examination (performed 2 weeks prior to separation); the CI reported weakness, stiffness and instability of his left ankle without specific antecedent trauma.  His duty performance was limited at his job due to inability to carry heavy weights, but otherwise he could accomplish the normal activities of daily living.  His posture and gait were normal.  Neither instability nor laxity was documented other than subjectively.  The VA accomplished a second C&P examination on 26 January 2009 (13 months post-separation) he reported that the pain was getting worse and he walked with a limp.  He denied incapacitation and was able to work as a field representative.  He reported difficulty with stairs and wore a lace up brace.  On examination, a limp was observed.  

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Ankle ROM
(Degrees)	MEB ~ 3 Mo. Pre-Sep
(20070918) p.29	VA C&P ~ At Sep	VA C&P ~ 13 Mo after Sep	
Dorsiflexion (20 Normal)	10	20	10	
Plantar Flexion (45)	45	45	35	
Comment		DeLuca negative; pain at the end of motion	Instability and swelling noted; Repetition increased pain, but additional functional loss not measureable in degrees	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the ankle at 0% using the analogous code 5099-5003 (degenerative arthritis).  The VA initially rated the ankle at 10% using the dual codes 5010 and 5271 (traumatic arthritis and limitation of motion) for the ankle, but subsequently raised it to 20%, based on the 
16 January 2009 examination, effective to the date of separation since the CI requested an increase within the first 12 months post-separation.  The second C&P examination was outside the normal 12 months window and the CI reported worsening since the previous examination.  The initial C&P was essentially normal other than pain at the end of motion.  The Board noted that the MEB and first VA C&P were both proximate to separation and consistent with each other.  The MEB examination supported a 10% rating based on limitation in motion; the VA C&P supported a 10% rating for painful motion.  The Board also recommended the use of the code 5010 for traumatic arthritis.  The Board found no route to a higher rating using the two examinations proximate to separation.  It did note that the VA subsequently raised the rating for the ankle to 30%, but not until the 19 January 2011 rating decision which was effective 
4 November 2009 (24 month after separation) and based on an examination obtained in April 2010 (28 months post-separation).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  The use by the PEB of the table for analogous codes does not imply that the VASRD was not used for rating the ankle condition.  In the matter of the left ankle condition, the Board unanimously recommends a disability rating of 10%, coded 5010 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	
Left (Ankle ) Navicular Avascular Necrosis	5010	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130916, 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 XXXXXXXXXXXXXXXXX, AR20150006446 (PD201301406)

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