RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301539
BRANCH OF SERVICE:  Army	BOARD DATE:  20140604
Separation Date:  20051130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard MAJ/0-4 (43A/Personnel Management Officer) medically separated for a right ankle condition.  She was issued a permanent L3/S1 profile and referred for a Medical Evaluation Board (MEB).  The ankle condition, characterized as “traumatic arthritis, right ankle” with the following four conditions identified as secondary to the ankle, “joint pain, right ankle;” “joint pain in knees;” “joint pain in left hip;” and “low back pain;” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions as meeting retention standards.  The Informal PEB adjudicated “posttraumatic arthritis, right ankle, secondary to distal fibular fracture (Fx),”; “bilateral knee pain;” “left hip joint pain;” and “low back pain” as unfitting, rated 10%, 10%, 0%, and 0% respectively, with application of the US Army Physical Disability Agency (USAPDA) pain policy and the VA Schedule for Rating Disabilities (VASRD).  The PEB also adjudicated the other five conditions submitted by the MEB as not unfitting.  The CI non-concurred and the Reconsideration PEB only adjudicated the “posttraumatic arthritis, right ankle…” as unfitting, rated 10%, identifying all other conditions as not unfitting.  The CI non-concurred with the reconsideration PEB with a Formal PEB (FPEB) upholding the reconsideration PEB’s finding.  The CI appealed the FPEB’s decision and it was upheld by the USAPDA.  The CI was then separated.

CI CONTENTION:  The CI requests that we review her VA disability and Social Security disability ratings.

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.  In addition, the CI was notified by the Army that her case may be eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process.  Since the CI responded to this mailing, it is presumed that she has elected review by the PDBR for the MH condition contended (none found).  In accordance with Secretary of Defense directive for a comprehensive review of the MH diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting MH diagnoses in accordance with VASRD §4.129 and §4.130.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The rating for the unfitting ankle condition is addressed below.  Additionally, as the CI requested that we review her VA award, the following conditions found unfit by the PEB are also being reviewed by the Board: mild degenerative arthritis of the knees; joint pain in hip and mild spondylosis of lumbar spine.  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 FPEB – Dated 20050929	VA - (3 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post-traumatic Arthritis, Right Ankle	5010	10%	Right Distal Fibula Fx, s/p surgical correction 	5262	30%*	Service Treatment Record (STR)	
Degenerative Arthritis of Knees	Not Unfitting	L Knee Strain Associated with Right Distal Fibular Fx	5260	10%	20050826	
		R Knee DJD w/ Chondromalacia Patella Associated w/ Right Distal Fibular Fx	5261	10%	20050826	
Joint Pain in Left Hip	Not Unfitting	Post-traumatic Arthritis, Left Hip, Associated with Right Distal Fibular Fx	5252	10%	20050826	
Mild Spondylosis of Lumbar Spine	Not Unfitting	Lumbar Spine Strain Associated with Right Distal Fibular Fx	5237	20%	20050826	
Other x2 (Not in Scope)	Other x 4	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decisions (VARDs) dated 20041029 and 20060112. *20041029 VARD rated the 5262 at 100% (surgery) and then 10%, increased to 30% by 20060112 VARD, effective 20040107.  VARD of 20060112 added the last four conditions, effective 20050706.  No VA exams were quoted as evidence by the 20041029 VARD.

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Right Ankle Condition.  The CI sustained a right ankle fracture while descending an icy mountain trail during a field training exercise on 8 February 2004.  She was helicoptered to a civilian hospital and underwent surgical fixation of the ankle fracture.  The CI underwent extensive physical therapy for range-of-motion (ROM) and strengthening.  The orthopedist noted that the CI still had pain and stiffness along the posterior tibia and tenderness over the anterior tibia-fibula line and bottom of foot.  The initial VA Compensation and Pension (C&P) exam approximately 11 months prior to separation documented that the CI complained of pain in the right ankle, tight ligaments, numbness on the bottom of the foot, stiffness, swelling and instability.  The C&P exam findings are summarized in the chart below.  An orthopedic follow-up appointment in May 2005, noted that the CI continued with an antalgic gait, significant restriction of motion and an inability to rise onto her toes and tenderness to palpation over the ankle.  The CI was given a cane to assist with ambulation.  The commander’s statement noted that the CI’s right ankle fracture along with her residual knee, hip and back pain prevented her from being fit to deploy and unable to perform her MOS duties.  The initial MEB narrative summary (NARSUM) exam approximately 5 months prior to separation documented constant right ankle pain, swelling and stiffness, precipitated by walking or standing and worsened with activity.  The MEB NARSUM exam findings are summarized in the chart above.  The CI was given a permanent L3 profile for ankle arthritis-post fracture and other medical conditions.  The second VA C&P exam approximately 3 months prior to separation documented that the CI needed to wear an ankle brace and use a cane for ambulation.  She reported numbness, paresthesias, stabbing achy pain in the right foot.  No ankle ROM’s were done at this exam.  The CI was seen by orthopedics in May, July and October and each examiner documented that the CI reported worsening of the right ankle pain with significant tenderness to palpation along the lateral malleolar plate, medial malleolus and dorsum of the foot.  The examiner reviewed a right ankle X-ray from 15 December 2004 which showed no evidence of non-union or malunion.  An addendum to the MEB NARSUM exam approximately 2 months prior to separation, documented that the CI had incapacitating pain which prevented her from performing her activities of daily living.  The MEB NARSUM addendum exam findings are summarized in the chart below.
There were three ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the following chart:

Right Ankle ROM (Degrees)	VA C&P 11.5 Mos. Pre-Sep	MEB 5.5 Mos. Pre-Sep	MEB Addendum 2 Mos. Pre-Sep	
Dorsiflexion (20 Normal)	5	5	0	
Plantar Flexion (45)	10	20	30	
Comment	Guarded gait; Pos. tenderness to palpation; Pos. edema & painful motion; Pos. weakness unable to walk using full weight on right foot;	Antalgic gait; Pos. swelling & tenderness to palpation; Minimal thigh & calf atrophy; Pos. crepitus; No instability, Pos. hyperesthesia bottom of foot	Pt. reports “Pain is incapacitating”	
5271	20%	20%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the post-traumatic arthritis, right ankle condition as 5010 (arthritis due to trauma) and rated at 10% for “loss of ankle motion.”  The VA coded the right distal fibula, Fx, condition as 5262 (impairment of tibia and fibula) and rated at 30% consistent with malunion with marked ankle disability.  The VA initially rated the right ankle condition at 10%; however, the VARD on 11 February 2005 increased the rating to 30% effective on 7 January 2004 after review by a Decision Rating Officer citing “…rated under code 5284, other foot injuries with severe symptoms.”  In September 2005, the orthopedist reviewed a right ankle X-ray from 15 December 2004 and documented no evidence of non-union or malunion.  All exams proximate to separation documented limited dorsiflexion and plantar flexion and required the use of a brace and cane for ambulation.  The Board reviewed the rating criteria of 5271 (limited motion of the ankle) and determined that this coding more closely described the right ankle condition; the CI had an ankle injury with surgical repair of the ankle, as compared to the VA’s use of a foot code for rating.  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 right ankle post-traumatic arthritis status post open reduction and internal fixation condition coded 5271.

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the FPEB and upheld by the USAPDA were bilateral knee pain, joint pain in left hip and mild spondylosis of lumbar spine.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the FPEB’s fitness adjudications.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations and requires a preponderance of evidence.

Bilateral Knee Pain, Left Hip Joint Pain and Low Back Pain Contended Conditions.  A causality linkage of the bilateral knee pain, left hip joint pain and low back pain conditions with the unfitting right ankle post-traumatic arthritis condition, even if conceded, is not a basis in itself for service disability rating.  Concurrent conditions of this nature must themselves be separately unfitting to merit additional rating.  The evidence contained two profiles signed by the same individuals and dated the same day, one identified only the right ankle condition while the other identified the bilateral knee, left hip and low back pain conditions.  The MEB physical exam (DD Form 2808) documented a diagnosis of low back pain but did not contain a diagnosis of any knee or hip condition.  The commander’s statement mentioned “…residual knee, hip and back pain due to her abnormal gait from her ankle injury.”  The Board did not find any evidence of an evaluation or treatment of a knee, hip or low back condition in the STR.  All entries were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the bilateral knee, left hip or low back conditions significantly interfered with satisfactory duty performance.  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 FPEB fitness determination for the bilateral knee, left hip and low back contended conditions and so no additional disability ratings are recommended.

Mental Health Contended Condition:  The Board reviewed the records for evidence of changes or elimination of a MH diagnosis during processing through the military DES and determined that no MH condition was entered into the DES.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The evidence was reviewed and the Board noted that the MEB physical exam documented a diagnosis of depression and the CI completed MEB history form (DD Form 2807) reflected complaints of depression.  No MH condition was identified on any physical profile or by the commander’s statement.  There were no entries in the STRs that reflect evaluation or treatment for any MH condition.  There was no performance based evidence from the record that any MH condition interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was no unfitting MH condition existed so no additional disability rating is recommended.

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 (635-40) and the VASRD for rating the left hip joint pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the post-traumatic arthritis, right ankle, secondary to distal fibular fracture condition, the Board unanimously recommends a disability rating of 20%, coded 5271 IAW VASRD §4.71a.  In the matter of the contended bilateral knee pain condition, the Board unanimously recommends no change from the FPEB determination as not unfitting.  In the matter of the contended joint pain left hip condition, the Board unanimously recommends no change from the FPEB determination as not unfitting.  In the matter of the contended low back pain condition, the Board unanimously recommends no change from the FPEB determination as not unfitting.  In the matter of the contended MH condition, the Board unanimously recommends no unfitting mental Health condition existed so no disability rating is recommended.  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	
Post-traumatic Arthritis, Right Ankle	5271	20%	
Bilateral Knee Pain Condition	Not Unfitting	
Joint Pain in Left Hip	Not Unfitting	
Low Back Pain	Not Unfitting	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, 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, AR20140015241 (PD201301539)

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