RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	     CASE:  PD 2014-00811
BRANCH OF SERVICE:  Army	BOARD DATE:  20150507
SEPARATION DATE:  20071119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve, E-4, (Health Care Specialist) medically separated for a left ankle condition which could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The condition “residual problems and limitation of range of motion from an ankle fracture” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated the left ankle condition 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:  “A lot of issues with the leg, constant pain on a daily basis, have done too much physical therapy which causes more pain.  Surgery pending.”  Her 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 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 20071019	VA (2+ Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Ankle Pain ...	5271	10%	Surgical Residuals, Left Ankle	5271	20%	20080130	
Other x 0 (Not In Scope)	Other x 0	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20080728 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Left Ankle Condition.  The service treatment record (STR) documents a left ankle fracture (medial malleolus) in April 2007 (7 months prior to separation) sustained from a fall during basic training; ultimately requiring surgery (open reduction and internal fixation) in April 2007.  There are STR entries reflecting an uncomplicated recovery, but rehabilitation efforts were unsuccessful at allowing the CI to complete military training.  There are no STR entries probative to rating during this period, since most of that time was spent in a cast.  Post-operative X-rays demonstrated a healed fracture and a normal mortise (joint space and alignment).

The narrative summary (NARSUM) was conducted 22 August 2007 (4 months after surgery and 3 months prior to separation).  It is cursory and does not elaborate severity of symptoms or functional impediments.  The physical exam recorded the absence of tenderness, without comment regarding other findings or gait.  The NARSUM range-of-motion (ROM) measurements are charted below.  Also charted are physical therapy ROM measurements for the MEB (dated a month after the NARSUM).

Outpatient VA entries soon after separation document an antalgic gait, and one of them provides the additional ROM evidence charted below.  A VA Compensation and Pension examination was conducted on 30 January 2008 (9 months after surgery and 2 months after separation).  It documented “daily” pain rated 1-2/10 with subjective “weakness, stiffness” and a reported tendency to “twist or give away, especially when walking on uneven surfaces”; with “fatigability ... in that she can’t walk for more than 10 blocks at a time” and “infrequently” using a cane.  The VA physical exam recorded mild edema and tenderness, without comment regarding joint stability or gait. 
 
The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and the VA rated under code 5271 (ankle limitation of motion), which provides a 10% rating for “moderate” limitation and 20% (maximum) for “marked” limitation; with the PEB’s DA Form 199 and the VA’s rating decision applying those descriptors to their respective 10% and 20% rating assessments.  It should also be borne in mind that the condition was still fairly close to surgery at separation and would be expected to follow an improving course over the interval between the two exams; although the ROM evidence in this case is somewhat incongruent in that regard.  With the clinical trajectory and the subjective judgment necessitated by the rating criteria in mind, members deliberated whether “moderate” or “marked” was the fairest characterization of the ROM limitation in evidence.  Given the functional implications of the very limited dorsiflexion at separation (gait alteration and stress on other joints) and the imperative for yielding reasonable doubt, members agreed that the higher rating under 5271 should be conceded.  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 the gait disturbance and functional limitations from the VA evidence would support the “moderate” 20% criterion under that coding approach, but could not be reasonably characterized as the “marked” disability required for a 30% rating.  It is further noted that the “slight” disability for a 10% rating under 5299-5262 is not a fair characterization of the functional impairment in evidence; lending further credence to the above recommendation for a 20% rating under 5271, considering the imperative of VASRD §4.7 (higher of two evaluations).  After due deliberation, considering all of the evidence and conceding VASRD §4.7 and §4.3 (reasonable doubt), the Board recommends a 20% rating for the left ankle condition under code 5271.

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 left ankle condition, the Board unanimously recommends a Service disability rating of 20%, coded 5271, 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 her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Surgical Residuals, Left Ankle Fracture	5271	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB										

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20150018840 (PD201400811)

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