RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00801
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090419

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Medical Specialist) medically separated for chronic right ankle pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3H3 profile and referred for a Medical Evaluation Board (MEB).  The “bilateral sensorineural hearing loss” and “grade III lateral ankle ligamentous injury” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (“allergic rhinitis”) for PEB adjudication.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic right ankle pain…” as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions, “bilateral sensorineural hearing loss” was determined to meet retention standards and not ratable.  The “allergic rhinitis” was determined to meet retention standards.  The CI made no appeals and was medically separated.  

CI CONTENTION:  “Conditions I suffer from now were never included as medical problems…” The applicant’s complete submission, with attachments, 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 (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 20090304	VA* - (~2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Ankle Pain	5099-5003	10%	Residuals, Right Ankle Strain	5271	10%	20090219	
Bilateral Senorineural Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	NSC	20090219	
		Tinnitus	6260	NSC	20090219	
Conditions x 1 (Not in Scope)	Other x 6 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20090603 (most proximate to date of separation [DOS]).  
ANALYSIS SUMMARY: 

Right Ankle Condition.  The service treatment record (STR) documents that the CI rolled her right ankle while playing softball.  Right ankle X-rays were negative for a fracture and she was managed conservatively for an ankle sprain.  A right ankle MRI was unremarkable and showed no evidence of internal derangement.  A nuclear medicine bone scan showed mildly increased uptake in the distal right tibia probably representing a bone contusion (bone bruise).  The orthopedic surgery consultation recounted the history of conservative management which included activity modification, physical therapy (PT), cam walker, and nonsteroidal anti-inflammatory drugs (NSAIDs).  Right ankle exam revealed no obvious swelling, deformity, or tilt.  There was tenderness over the anterior talofibular ligament (ATFL).  The ankle anterior drawer test (assesses integrity of ATFL) was mildly positive.  There was good subtalar/talonavicular motion, without discomfort and good peroneal strength, without bogginess.  The assessment listed ankle joint pain with a plan for a cast for four weeks followed by a boot for 4 weeks.  Serial right ankle X-rays were normal.  Right ankle  active range-of-motion (ROM), measured by physical therapy (PT), recorded dorsiflexion (20 normal) of -1 and plantar flexion (45) of 23 degrees.  The narrative summary (NARSUM), 3 months before separation, recounted the history and interventions.  The CI failed conservative management and was not deemed a surgical candidate.  The medication for her right ankle pain was a topical cream (Capsaicin).  The physical exam documented a normal gait.  The right ankle exam revealed a normal appearance and tenderness distal to the lateral malleolus (ankle rounded bony prominence).  The CI had apprehension with ROM, especially inversion.  Pulses and deep tendon reflexes (DTRs) were normal and pathologic reflexes were absent.  The diagnosis listed Grade III lateral ankle ligamentous injury with incomplete rehabilitation.  Right ankle active ROM values were measured with a goniometer by PT for the MEB.  The initial ROM value, followed by three additional repetitions, were dorsiflexion (20) of 10 and 10/10/10 and plantar flexion (45) of 40 and 40/40/40 degrees.  The CI complained of 3/10 aching pain at baseline.  She complained of pain with all directions of ROM.  The CI did not have additional limitation of motion after three repetitions of active ROM.  The compensation and pension (C&P) exam, 2 months before separation, recounted the history and interventions.  The CI complained of constant right ankle 4/10 pain with daily flare-ups to 7/10 pain.  Pain was exacerbated by prolonged walking and relieved by rest.  She reported associated weakness, stiffness at night, occasional swelling, and that her right ankle “felt” unstable.  The CI denied additional limitation of motion during a flare-ups, dislocations, or inflammatory arthritis.  She occasionally wore a brace, but denied using a cane.  Medications were an NSAID (Ibuprofen) as needed and a combination opioid/analgesic (Vicodin) at night to help her sleep.  The physical exam revealed a normal posture and gait.  The right ankle exam revealed a symmetrical appearance without erythema (redness), ecchymosis (bruising), or swelling.  There was tenderness over the lateral malleolus inferiorly.  Inversion of the right foot felt slightly unstable compared to the normal left.  The drawer test was negative.  The initial active ROM value, followed by the value after repetitive ROM, were dorsiflexion (20) of 15 and 13 and plantar flexion (45) of 40 and 35 degrees.  Strength, sensation, DTRs, and pulses were normal.  The diagnosis listed chronic strain of the right ankle with mild to moderate instability with inversion.

The Board directed its attention to its rating recommendation based on the above evidence.  The informal PEB rated the right ankle condition 10% (VASRD code 5099-5003; rating by analogy-degenerative arthritis).  The PEB cited sprain sustained playing baseball, chronic right ankle pain, Grade Ill lateral ankle ligamentous injury, failure to heal properly, incomplete recovery, tenderness in area of lateral malleolus, no joint instability, and ROM.  The VA rating decision (VARD), citing the C&P exam 2 months before separation, rated the right ankle condition at 10% (5271; ankle, limited motion of:  moderate).  The VARD cited right ankle strain, constant pain, daily flare-ups, precipitated by prolonged walking, alleviated by rest and medication (Ibuprofen and Vicodin), weakness, night-time stiffness, occasional swelling, feeling of instability, occasional ankle brace, tenderness over lateral malleolus, slightly unstable with inversion,  no erythema, no ecchymosis, no swelling, and ROM.

Board members agreed that the ankle limitation of motion (5271) in the proximate exams more closely approximated the moderate (10%) than the marked (20%) rating.  There was no deformity for consideration under 5270 (ankle, ankylosis), 5272 (subastragalar or tarsal joint, ankylosis of), or 5273 (os calcis or astragalus, malunion of).  There was no excision of the astragalus for consideration under 5274 (astragalectomy).  Board members agreed that there was sufficient evidence of pain with use, as well objective exam and imaging findings, to support a 10% rating considering VASRD §4.40 (functional loss) and §4.59 (painful motion).  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.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hearing loss condition was not unfitting.  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.  

Contended Hearing Loss Condition.  The STR contained a hearing conservation audiogram, twelve months before separation, with a threshold average of 22.3dB for the right ear and 11.2dB for the left ear.  The hearing evaluation report by audiology, ten months before separation, documented a pure tone average of 38dB for the right ear and 28dB for the left ear.  The word recognition was 96% for the right ear and 88% for the left ear.  The Speech Recognition In Noise Test (SPRINT) had a raw score of 148 out of 200 which converted to a 21st percentile score.  The audiologist reported that there was mild to moderate sensorineural hearing loss in the right ear.  Left ear hearing was normal except for a mild and circumscribed loss.  The examiner noted there was a large difference in ascending and descending threshold responses and that hearing for speech in noise was impaired.  The NARSUM referred to the consultations by the civilian and military audiologists.  The C&P exam by audiology, 2 months before separation, documented that “Due to nonorganic component reliable [pure tone] thresholds could not be obtained.”  The speech recognition score was 68% for the right ear and 96% for the left ear.  The audiologist reported that “… immittance [evaluates eardrum, middle ear,  inner ear, auditory nerve, auditory brainstem pathways, and facial nerve] results indicated normal middle ear function with acoustic thresholds well within normal limits in all conditions.  Otoacoustic emissions [low-level sound emitted by the inner ear/cochlea either spontaneously or evoked by an auditory stimulus] were present and robust.  This would suggest hearing thresholds at or better than 30 dB.  Speech recognition scores were excellent bilaterally.”  The examiner opined that results were inconsistent with behavioral thresholds.  The audiologist documented that the CI “…presented responses which were inconsistent and unreliable suggesting nonorganic hearing loss. … Hearing loss could not be reliably established.”  While the hearing loss was implicated in the profile and MEB, it was not implicated in the commander’s statement.  The PEB found that the CI was able to function with hearing protection, and right ear amplification, and the hearing loss was considered to be not unfitting.  The hearing loss was reviewed and considered by the Board.  There was no performance based evidence from the record that the hearing loss condition 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 PEB fitness determination for the hearing loss condition and so 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 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.  In the matter of the contended hearing loss condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20140218, 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, AR20160002769 (PD201400801)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA