RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00142
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061102

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Medical Laboratory Specialist) medically separated for a right ankle condition which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The diagnosis “right ankle osteoarthritis” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated “chronic right ankle pain … [elaborating surgical history]” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  “He was given a higher rating for his condition by the VA.  There were no additional conditions referred to the MEB for adjudication.  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 (such as the additionally contended conditions from above) 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 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:  

IPEB – Dated 20060823	VA* (2 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Ankle Pain …	5003	10%	Surgical Residuals, Right Ankle	5010-5271	20%	20070104	
			Surgical Scar, Medial Right Ankle	7804	10%		
			Surgical Scar, Lateral Right Ankle	7804	10%		
Other x 0 	Other x 11	
RATING:  10%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20070508 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Right Ankle Pain.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an injury to the right ankle during basic training (4 years pre-separation).  Initial and serial X-rays were negative, but the CI suffered persistent symptoms (pain, instability, recurrent sprains) in spite of conservative treatment and temporary profiles.  Magnetic resonance imaging in 2005 demonstrated an old avulsion fracture (anterior distal fibula) and ligament injury (anterior talofibular); and, in October 2005 (14 months pre-separation) the CI underwent surgical repair (Broström ligament reconstruction and debridement).  Several STR entries document that ankle stability was restored by the procedure, but pain and physical limitations persisted.  In January 2006 (10 months pre-separation) an arthroscopic debridement of an osteophyte (bone chip) was unsuccessful at providing adequate pain relief.  There are various STR entries documenting the development of an antalgic gait after the surgical interventions, and grossly normal range-of-motion (ROM) with painful motion.  There is no STR evidence (during the MEB, after surgeries) for more significant ROM limitation, joint instability or impingement, malalignment, or periods of incapacitation after surgical recovery.

The NARSUM was conducted 11 July 2006 (4 months pre-separation) and documented persistent pain requiring daily non-narcotic analgesics, but stated that the instability had resolved with surgery.  The CI used a cane for ambulation, and noted functional limits were walking no longer than a half hour and standing no longer than an hour.  The NARSUM physical examination recorded an antalgic gait, healed scars, joint (not scar) tenderness, joint stability to stress testing, 5/5 strength, and normal sensory findings.  The NARSUM measured ROM was dorsiflexion (DF) to 10 degrees (normal 20) and plantar flexion (PF) to 30 degrees (normal 45).

A VA Compensation and Pension (C&P) examination was conducted 4 January 2007 (2 months post-separation) and documented “severe” flare-ups of ankle pain on a daily basis which “would last for a few minutes, but occurs several times a day depending on activities;” and were precipitated by “walking or prolonged standing.”  In addition to the use of a cane, the VA examiner noted the CI’s report of subjective instability on uneven terrain and occasional use of a brace.  The VA physical examination recorded an antalgic gait and tenderness in the area of healed surgical scars (not differentiating joint versus scar tenderness, but interpreted as scar tenderness by the rater), without comment regarding swelling or stability testing.  The VA measured ROM was DF 10 degrees and PF 45 degrees, annotating painful motion.  Additionally the VA examiner opined that during acute flare-ups “there is probably limitation of [DF] at 5 degrees and ... [PF] at 30 degrees secondary to pain;” and, judged that overall there was “moderate functional impairment.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under 5003 (degenerative arthritis) was compliant with VASRD §4.71a criteria for that code.  The VA’s 20% rating was under code 5010-5271 (traumatic arthritis rated for limitation of motion), with 5271 conferring a 10% rating for “moderate” ROM limitation and 20% for “marked” limitation.  The rating decision cited the C&P examiner’s estimate of ROM during flare-ups in support of the higher rating.  Members agreed, however, that this evidence was too speculative to justify as “marked” in light of the moderate ROM limitation as measured by both the MEB and VA examiners (and recalling STR observations of grossly normal ROM).  The only other potentially applicable code under VASRD §4.71a for this case is analogous application of 5299-5262 (tibia and fibula, impairment of) which provides rating for contiguous ankle disability: 10% for “slight,” 20% for “moderate,” and 30% for “marked” disability.  Members agreed that, in light of the fairly significant functional disability in evidence for this case, that analogous application of 5262 was supported IAW VASRD §4.7 (higher of two evaluations).  Neither 5003 based rating nor rating under any other joint code available under VASRD §4.71a adequately captures the disability in evidence.  Given the persistent gait and ambulatory compromise and the functional limitations elaborated above, members agreed that the contiguous ankle disability was fairly characterized as “moderate” and justified a 20% rating via 5262 criteria.  A 30% recommendation for “marked” disability via this route was entertained, but members agreed that the intact functioning remained considerable and did not reasonably support the rating.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the right ankle condition under code 5299-5252.

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.  In the matter of the right ankle condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5262, 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:  

CONDITION	VASRD CODE	RATING	
Right Ankle Injury, Surgical Residuals	5299-5262	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131220, 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 XXXXXXXXXXXXXXXXXXXX, AR20160000418 (PD201400142)

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:

CF: 
(  ) DoD PDBR
(  ) DVA