RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00361
BRANCH OF SERVICE:  Army	BOARD DATE:  20141219
SEPARATION DATE:  20070926

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (M1 Armor Crewman) medically separated for a right ankle condition.  The 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 ankle condition, characterized as “ankle pain on the right secondary to cartilage damage and blunt trauma” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated decreased range-of-motion (ROM) and chronic right ankle pain as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  His condition has gotten worse and he continues to have medical issues that are associated with the original injury for which he became unfit.  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 IPEB – Dated 20070522	VA* - (13.8 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Decreased ROM due to Ankylosis and Chronic
Pain of the Right Ankle	5271	10%	Right Ankle Tendonitis s/p Fibula Fracture with
Arthroscopy	10%	5299-5271	20081112	
Other x 0 (Not in Scope)	Other x 7	
Rating:  10%	Combined:  10%	
*Derived from VA Rating Decision (VARD) dated 20081202 (most proximate to date of separation (DOS))
ANALYSIS SUMMARY:

Right Ankle Condition.  The narrative summary (NARSUM) notes the CI to have been involved in a tank injury during training in November 2003 sustaining major chest, abdominal and right lower leg and ankle injuries.  The chest and abdominal injuries healed without sequellae.  He subsequently noted increasing foot pain with limp in the right leg.  Magnetic resonance imaging (MRI) revealed a tear in the ligament that dorsiflexes (toe toward ceiling) the foot.  This was arthroscopically repaired in July 2004.  A chronic foot pain syndrome developed.  A repeat MRI in 2005 revealed defects in the talus bone of the foot.  This was addressed arthroscopically in September 2005.  This surgery healed without difficulty, but ankle pain persisted.  On an evaluation on 23 November 2006, the CI had a normal gait.  Some “restriction of motion” of the ankle from pain was reported.  Motor, sensory and reflex exams were normal.  At the MEB NARSUM evaluation on 2 April 2007, 6 months prior to separation, the physical exam noted an “obvious” antalgic gait.  No swelling of the ankle was present.  A slight decrease in passive dorsiflexion with pain was reported.  The neurovascular exam was normal.  Surgical scars were well healed without tenderness.  On a physical therapy evaluation on 4 May 2007, 5 months prior to separation, dorsiflexion was reported as 0 degrees without pain.  Plantar flexion was normal. (Normal: dorsiflexion 20 degrees; plantar flexion 45 degrees).

At the VA Compensation and Pension exam, performed approximately 14 months after separation, the CI reported the ankle condition to have a “moderate” impact on exercise, sports and recreation activities, but “none” on activities of daily living.  On physical examination, the gait was normal.  ROM of the ankle was normal without pain or ligamentous laxity.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and the VA both rated the right ankle condition at 10%, code 5271 (ankle, limitation of motion/moderate).  A higher rating of 20% under this code requires the condition to be “marked.”  The Board noted the differences between the NARSUM and VA exam findings for the ankle condition and gave higher probative value to the NARSUM exam in its recommendations given its closest temporal alignment with the date of separation.  Based on this data, the Board agreed that the ankle condition was “moderate” and supported rating of 10% coded 5271.  The Board agreed the record supported a rating no higher than 10% under codes 5284 (foot injury) and 5283 (tarsal bones, malunion).  A higher rating of 20% under these codes requires the condition to be “moderately severe.”  The Board considered a rating under code 7804 (scars) but was unable to do so as scars were well healed, stable and not painful.  The Board found no other appropriate codes for consideration and no pathway to a rating higher than 10% for the ankle condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right 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.  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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140102, 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, AR20150008503 (PD201400361)

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 and hereby deny the individual’s application.  This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl			    
		 
CF: 
(  ) DoD PDBR
(  ) DVA