RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00966
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091229

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Paralegal Specialist,  medically separated for a “right ankle condition” with a disability rating of 10%. 

CI CONTENTION:  The CI contends that his right ankle was improperly rated by the PEB. The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20090921	VARD - 20101021	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Limitation of Motion of Right Ankle due to Arthritis	5010-5271	10%	S/P Right Ankle ORIF Repair	5271-5010	10%	20100617	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Right Ankle. According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent right ankle surgery in December 1998 for an ankle fracture.  Due to ankle pain and stiffness, the CI underwent a MOS/Medical Retention Board (MMRB) in 2004 and was reclassified from a paratrooper to a paralegal.  In January 2009, 11 months prior to separation, the CI had hardware removed from the medial aspect of his ankle; however, the CI reported continued pain and stiffness.  An orthopedic evaluation in June 2009, 6 months prior to separation, documented well-healed surgical scars, mild swelling, and plantar flexion of 45 degrees (normal 45) and dorsiflexion of 10 degrees, (normal 20).  At the time of the NARSUM, performed in July 2009, 5 months prior to separation, the CI reported post hardware pain and swelling with any exertional activity.  He was unable to do basic soldiering skills. He reported that his ankle has had no impact on his ability to be a paralegal or recruiter.  Physical examination noted a normal gait, 5/5 lower extremity strength and no evidence of no joint effusions, instability, or deformities.  The examiner documented mild ankle swelling and tenderness over the lateral and medial malleolus.  The examiner noted that the CI was able to work a full duty day and attend formations as required.  At the VA Compensation and Pension examination on 17 June 2010, performed 6 months after separation, the CI reported pain flare-ups about 4 times a week which were alleviated by rest and medication.  The CI denied giving way, locking, fatigability, effusion, subluxation and dislocation.  Physical examination showed tenderness to palpation without abnormal movement, instability, or deformity.  Range-of-motion (ROM) was normal. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under 5010-5271 code (arthritis, due to trauma and ankle, limited motion of), citing moderate limitation of motion.  The VA also assigned a 10% rating under 5271-5010 code (ankle, limited motion of and arthritis, due to trauma) based on the VA C&P examination 6 months after separation, citing painful or limited motion of major joint and moderate limited motion of the ankle.  The Board considered if the limitation of motion was moderate or marked when rated under 5271 (limitation of ankle motion). The Board agreed that the ROM examinations proximate to separation were consistent with a moderate limitation of motion supported by the presence of swelling and tenderness for a 10% rating.  The Board considered alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to rating. 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:  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.  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 20140220, 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, AR20160006736 (PD201400966)

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