RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX 	CASE:  PD-2014-00323
BRANCH OF SERVICE:  ARMY	BOARD DATE:  2040627
SEPARATION DATE:  20060818

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantry) medically separated for a chronic left ankle condition.  His ankle pain condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB characterized his condition as “chronic left ankle pain” and forwarded it to the Physical Evaluation Board (PEB) as not meeting retention standards IAW AR 40-501.  The MEB also identified and forwarded two other conditions as meeting retention standards for PEB adjudication.  The informal PEB adjudicated “chronic left ankle pain” as unfitting, rated 0%.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20060515	VA - (7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Ankle Pain	5099-5003	0%	Left Ankle Strain	5271	10%	20070305	
No Additional MEB/PEB Entries in Scope	Other x 3	
Combined:  0%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20070611 (most proximate to date of separation [DOS]).

Chronic Left Ankle Pain:  The CI sustained an inversion injury (sprain) of the left ankle during basic training in 2002.  Special ankle X-rays (magnetic resonance imaging), obtained on 10 October 2005, revealed a probable torn ankle ligament and a “chondroma” of the distal tibia (small benign lesion; evidence of prior ankle trauma).  On an orthopedic evaluation performed on 17 November 2005, tenderness to palpation of the ankle joint was reported.  Range-of-motion (ROM) of the ankle was normal with normal motor strength and no instability of the ankle joint.  Surgery for repair of the ligament injury was offered, but declined by the CI.  On physical therapy (PT) evaluation on 6 February 2006, joint pain localized to the ankle joint was reported.  At the MEB/narrative summary (NARSUM) evaluation on 21 April 2006, 4 months prior to separation, the CI reported dull aching ankle pain at rest and a “burning sensation” with prolonged walking and running.  He noted being unable to walk greater than a quarter mile without “stiffing moderate pain.”  On physical exam the gait was normal and CI was able to perform five “straddle hops” with only mild discomfort.  Mild tenderness of the left ankle without swelling was present on palpation.  Mild ligament instability with pain on active inversion of the ankle was noted.  ROM, motor strength and sensation were normal.  At the VA Compensation and Pension (C&P) exam performed on 5 March 2007, 6 months after separation, the CI reported his left ankle condition “flares up” with overuse and was relieved by rest.  He reported being able to walk 1 to three 3 and to walk without a limp except during “flare ups.”  He further reported no impact of the condition on his usual occupation, daily or recreational activities with the exception of limiting prolonged walking.  He was taking no medication for the ankle condition.  The examination of the left was described as “normal.”  Gait was normal and the CI was able to rise to his toes, rise onto his heals, rise from a squat and tandem walk without pain or difficulty.  Tenderness of the left ankle on palpation was present.  ROM without pain, normal motor strength and no ankle instability was reported.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the ankle condition 0%, coded 5003, citing pain, minimal.  The VA rated the condition 10%, code 5271, ankle limitation of motion moderate, citing tenderness of the ankle on palpation.  The Board unanimously agreed that the preponderance of evidence in record did not support a compensable rating for the condition under ROM codes IAW §4.71a.  The Board agreed that the ankle condition was not unstable and not ratable under codes 5272 or 5273.  The Board considered a rating for painful motion IAW §4.40 or §4.59, but agreed that the condition at the time of separation did rise to a 10% rating.  The Board found no other appropriate codes for consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 10% for the left ankle condition.

Contended Mental Health (MH) Conditions:  The Board’s main charge is to review the record and assess whether any MH condition was unfitting and should be considered for disability rating.  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 Board noted the NARSUM, MEB and PEB documents to contain no MH inclusions.  The Board agreed that the applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board noted a “past history” reference to “adjustment disorder” on an orthopedic evaluation on 17 November 2005 and a PT evaluation of 8 February 2006.  However, the Board found no entries of MH evaluation or treatment in the available service treatment records.  The Board noted a VA C&P psychiatry exam on 13 March 2007, 8 month after separation.  On this evaluation, the examiner noted being unable to find notes by treating psychiatrists in the treatment records, claim file or computerized patient record system.  Based on reports by the CI, he opined Axis I diagnoses of anxiety disorder, not otherwise specified and posttraumatic stress disorder (PTSD) in remission.  A Global Assessment of Function of 75 was assigned (slight impairment in social, occupational, or school functioning).  No MH disorder was mentioned in the commander’s statement, was profiled or was judged to fail retention standards.  There was no indication from the record that any MH condition significantly interfered with satisfactory duty performance.  The Board found no DSM IV TR criteria to support a diagnosis of PTSD.  The Board concluded that the preponderance of evidence in record did not support an unfitting determination for any MH condition at the time of separation and that VASRD §4.130 and §4.129 were not applicable in this case.  After due deliberation in consideration of the preponderance of the evidence, the Board unanimously agreed that there was insufficient cause to recommend an unfitting status for any MH condition; thus, no additional disability ratings are 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.  The PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the left ankle condition was possibly operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the painful left ankle condition, the Board unanimously recommends a disability rating of 10% coded 5099-5003 IAW VASRD §4.71a.  In the matter of any contended MH condition, the Board unanimously agrees that it cannot recommend an additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends modification of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Left Ankle Pain	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131028, 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, AR20140019472 (PD201400323)

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