RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01521
BRANCH OF SERVICE:  Army	BOARD DATE:  20150115
SEPARATION DATE:  20041116

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E-4 (Mortuary Affairs Specialist) medically separated for chronic pain, right ankle.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic pain, right ankle condition, characterized as “right ankle pain, slight/intermittent” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition.  The Informal PEB adjudicated “chronic pain, right ankle” as unfitting, rated 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining condition was determined to be not unfitting.  The CI appealed for a reconsideration, which affirmed the PEB findings.

CI CONTENTION:  His conditions are getting worse.  His complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service Recon – Dated 20040618	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Exam	
Chronic Pain, Right Ankle	5099-5003	0%	Right Foot Injury	NSC	STR	
Asthma	Not Unfitting	Asthma	NSC	STR	
Other x 0 (Not in Scope)	Other x 8		
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20080815 (most proximate to date of separation [DOS]).

Chronic Pain, Right Ankle Condition.  According to an undated clinic note in the STR the CI sustained a right ankle inversion injury while running, that caused pain and swelling over the lateral malleolus (outside of the ankle) and was diagnosed with a Grade II (moderate) ankle sprain.  No fracture was detected on an X-rays series.  Both pain and nonsteroidal anti-inflammatory medications were given along with a non-weight bearing posterior splint.  A follow-up note dated 21 March 2003 indicated the CI had the injury 5 days earlier with reported improvement, but with an inability to bear weight.  On 9 May 2003, a Physical Medicine and Rehabilitation (PM&R) specialist noted moderate swelling of the right foot laterally with moderate to severe tenderness of the talofibular ligament and other ligaments of the ankle.  The ranges-of-motion (ROM) included plantar flexion 35 degrees (N=45 degrees), dorsiflexion lacking 5 degrees to neutral position (N=20 degrees), and very limited inversion and moderately limited eversion.  Motor strength and sensation were decreased in the right foot.  She had poor balance and was unable to stand or walk on the tip of her toes or heels.  A course of physical therapy consisting of electrical stimulation, strengthening exercises, and balance and proprioception exercises was instituted.  Follow-up on 3 July 2003 noted continued swelling.  An electro-diagnostic study was marginally abnormal suggesting mild right peroneal neuropathy without determination of the specific site of injury.  Nonsteroidal anti-inflammatory medication was continued; and, light duty and no running or jumping was instituted.  A follow-up PM&R examination on 29 September 2003 noted a non-antalgic gait, no swelling in the right lateral ankle with persistent moderate tenderness of the ligaments of the right lateral ankle with plantar flexion 40 degrees and dorsiflexion lacking 5 degrees to neutral with limited inversion and eversion.  Sensation was decreased laterally and motor strength was decreased.  A magnetic resonance imaging of the right ankle performed on 2 October 2003 demonstrated a torn anterior talofibular ligament from its talar (ankle bone) attachment.  A PM&R examination on 12 January 2004 noted moderate swelling in the right lateral ankle with tenderness of the underlying ligaments.  Plantar flexion was 40 degrees and dorsiflexion was to neutral position and moderately limited eversion.  In a sworn statement dated 22 January 2004, the CI indicated she was running on the street, stepped “into” a rock, and twisted her right ankle.  A permanent L3 profile for chronic right ankle pain was issued on 22 January 2004 with limitations of no running, jumping, marching, or wearing combat boots.  The commander’s opinion dated 23 January 2004 indicated “there is some doubt as to [the CI’s] physical ability to perform in [her] Primary MOS at any time, any place, or any conditions.”  At the MEB examination dated 12 April 2004, the CI reported she injured her ankle in April 2003; and, the MEB physical examiner noted slight tenderness to palpation (TTP) on the lateral aspect of the right ankle and slightly decreased ROM.

The MEB narrative summary (NARSUM) dated 28 April 2004 indicated the CI had slight, intermittent right ankle pain secondary to a sprain as a result of an inversion injury while doing physical training leading up to mobilization.  In spite of physical therapy her symptoms continued and were described as a sharp, burning pain over the lateral aspect of the right ankle.  Pain was worse when climbing stairs, with cold temperatures, and with prolonged standing or walking.  The pain improved with rest and a nonsteroidal anti-inflammatory medication (Relafen).  Flare-ups occurred about three to four times per week and improved with rest.  There was slight tenderness to palpation over the lateral aspect of the foot with the ROMs for dorsiflexion 0-5 degrees and plantar flexion 0-40 degrees.  The CI was determined to be in a stable condition and doing well as long as she avoided strenuous physical activities, prolonged standing or walking, or climbing stairs and had a good prognosis as long as she performed only light duty.  However, she was unable to perform the duties of her MOS and basic military duties and could not wear military boots.  X-rays were normal without evidence of fracture, dislocation or effusion on 30 April 2004; and, orthopedic consultation on 4 May 2004 noted no edema of the ankle with pain on palpation of the lateral foot and mild instability. “No orthopedic management at the moment” was recommended.  As noted above, the temporally remote (59 months after separation) C&P examination was reviewed; however, it offered very limited or no probative post-separation evidence of any significant value.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5099-5003 for chronic pain, right ankle (slight/intermittent) IAW USAPDA Policy/Guidance Memorandum.  The CI submitted a rebuttal indicating she could not wear high shoes or boots and noted she had lower back pain.  The PEB found no change to the original decision was warranted and the USAPDA affirmed the PEB decision.  The VA determined the condition was not service-connected (NSC) due to a lack of a post-deployment examination using code 5271 (Ankle, limited motion).  At the time of separation, the foot injury residuals included a torn talofibular ligament, mild right peroneal nerve neuropathy (based on electro-diagnostic findings, albeit without clinical evidence), and decreased ROMs including inversion and eversion limitations.  VA Schedule for Rating Disabilities (VASRD) code 5003 requires limitation of motion and objective evidence of pain on motion, spasm, or swelling for a 10% rating, which was not present.  Code 5271 likewise provides a 10% rating option.  However, using code 5284 (foot injuries) provides a route to at least a 10% rating for “moderate” and 20% for “moderately severe.”  The Board considered a 10% rating using code 5284 for a moderate injury since the CI was able to walk and has been able to control her symptoms with rest and medication, while a 20% rating was considered to be less applicable in the absence of surgery and in spite of her inability to wear combat boots or certain types of shoes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the chronic pain right ankle condition.

Asthma Condition.  The STR treatment record had very limited information relating to asthma.  A clinic note dated 3 April 2003 indicated the CI complained of sinus allergies of 2 days duration and chest congestion.  Treatment by respiratory therapy with Proventil afforded a good response.  However, a Statement of Medical Examination and Duty Status dated 21 January 2004 referred to a note of 4 March 2003, which indicated she “was diagnosed with asthma while on mobilization.”  An individual sick slip with a written date of 5 Mar or 5 May 2003 only indicated “asthma, f/u” with the disposition of patient box checked duty.  At the MEB examination dated 12 April 2004, the CI reported “asthma to pulmony” in March 2003; and, the MEB physical exam noted “Normal exam” and “asthma, medically stable.”  The MEB NARSUM dated 28 April 2004 noted the CI had a history of “mild persistent asthma that has been well controlled with Advair and has created no problems with her military training or physical activities.”  The NARSUM diagnosis dated 28 April 2004 was asthma, mild/intermittent, medically stable in the line of duty.

A VARD dated 15 August 2008 noted NSC for asthma since no post-deployment examination had been done.  As noted above, the temporally remote (almost 10 years after separation ) VA Compensation and Pension (C&P) examination was reviewed; however, it offered very limited or no probative post-separation evidence of any significant value other than noting a 5 March 2003 sick call for asthma.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB determined the asthma was not unfitting; and, therefore, was not rated.  The VARD using code 6602 noted the asthma was “not service connected, not incurred/caused by service.”  The Board’s main charge with respect to this condition is an assessment of the fairness of the PEB’s determination that it was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The established DES principle for fitness determinations is performance-based; and, the Board is confronted in this case with the lack of any evidence that asthma limitations prohibited the performance of those duties required of the MOS.  

Although it is acknowledged that the late evolution of the condition in the CI’s career did not provide for a significant trial of performance after the diagnosis, members agreed that there was no citable evidence which would challenge the PEB’s fitness conclusion; and, there were no clinical features or specific functional limitations, which would render the condition inherently unfitting.  

After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the asthma 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, the PEB reliance on the USAPDA pain policy for rating the right ankle condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right ankle condition, the Board unanimously recommends a disability rating of 10%, coded 5284 IAW VASRD §4.71a and the asthma condition remain not unfitting.  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 her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Pain, Right Ankle	5284	10%	
Asthma	Not Unfitting	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130918, 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 XXXXXXXXXXXXXXX, AR20150009861 (PD201301521)

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