RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01529
BRANCH OF SERVICE:  ARMY	BOARD DATE:  20150120
SEPARATION DATE:  20050107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-4 (Petroleum Supply Specialist) medically separated for right ankle pain.  The condition could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty, so she was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right ankle condition, characterized as “right Ankle Sprain, with chronic pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the right ankle condition as unfitting, rated 0% with likely application of AR 635-40 and/or the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Both ankles, torn ligaments.”

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 IPEB – Dated 20041101	VA - (16 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Pain	5099-5003	0%	Residuals of a Right Ankle Sprain	5271	20%	20030903	
Other x 0 (Not in Scope)	Other x 1	
Rating:  0%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20031013.

ANALYSIS SUMMARY:  The PEB disability description stated “Right ankle pain post injury July 2002 while in Basic Training.  Plain radiographs did show some medial malleolar sclerotic changes.  The ankle mortise was normal.  Soldier can go from 0 degrees dorsiflexion to 20 degrees passively with pain.  Plantar flexion was 30 degrees.  Range of motion decrease is due to pain.”  This was likely application of AR 635-40, B–29 and/or the USAPDA pain policy.

Right Ankle Condition.  The treatment record and narrative summary (NARSUM) detailed a right ankle injury (Grade III inversion sprain) in 2002 that was not responsive to conservative treatment.  No ankle surgery was performed prior to separation.  At the MEB exam, the CI reported continuous right ankle pain, increased with walking and weak ankle “twisting” (instability).  Radiographs of the right ankle were abnormal (cortical irregularity on X-ray and magnetic resonance imaging with talofibular ligament insertion area probable avulsion – AFTL injury).  Specialty exam performed in April 2004 documented tenderness, painful motion and no instability (negative talar tilt and anterior drawer) and stated “She does come to 0 degrees actively and will go to 20 degrees dorsiflexion with passive motion with some discomfort” (dorsiflexion normal 20 degrees; plantar flexion normal 45 degrees).  NARSUM exam in June 2004 documented a normal gait, grossly limited motion due to pain and unsteady toe walking on the right foot.  Motor, reflexes, neurovascular, and sensory exams were normal.  On 25 June 2004 a formal goniometric range-of-motion (ROM) testing from physical therapy was referenced in the NARSUM and documented active ROM of 0 degrees dorsiflexion (normal 20 degrees) and 30 degrees plantar flexion (normal 45 degrees) with limitation due to pain.

At the VA Compensation and Pension exam performed 16 months prior to separation, the CI had reported similar ankle injury history including re-injuries (twisting type) with continuing ankle pain.  Exam documented a normal gait with dorsiflexion 10 degrees and plantar flexion to 30 degrees and that on repetition the ankle was additionally limited by fatigue and lack of endurance (estimated at 5 degrees on both dorsiflexion and plantar flexion).  The examiner stated there was “ease of inversion or eversion” more than normal and indicated instability of the ankle.  Plain radiographs were normal.

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB rated the ankle (citing passive ROM) at 0%.  The VA, over a year prior to separation, rated the ankle at 20% based on limited motion and instability.  Ankle exams in the record consistently documented painful motion (IAW VASRD §4.59) which would warrant at least the minimal compensable rating (10%) for the ankle.  Limitation of ankle motion IAW VASR criteria is based on active ROM and code 5271 (Ankle, limited motion) has two rating levels with 10% “moderate” and 20% “marked.”  There was no ankylosis or equivalency to loss of use of the foot for any rating higher than 20%.  The formal ankle ROMs in evidence with inclusion of ankle instability all depicted a disability picture closer to the 20% (marked) criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% 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 AR 635-40 and/or the USAPDA pain policy for rating the right ankle condition was operant in this case and the condition was adjudicated independently of that instruction/policy by the Board.  In the matter of the right ankle condition, the Board unanimously recommends a disability rating of 20%, coded 5271 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 her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Ankle Pain 	5271	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130419, 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, AR20150009856 (PD201301529)

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 20% 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