RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01151
BRANCH OF SERVICE:  Army	 date of SEPARATION:  20080708

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Cavalry Scout) medically separated by the Informal Physical Evaluation Board for a right ankle condition, rated 20%.

CI CONTENTION:  He contends that his condition was rated under the improper VA Code.  The applicant’s 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 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 - 20080529	VA - 20080908	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Ankle, Limited Motion of Right	5271	20%	Fracture of Right Ankle…	5299-5271	20%	20080707	
			Scars; Status Post Right Ankle Surgery	7804	10%	20080707	
RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Ankle, Limited Motion of Right.  The CI was in a motor vehicle accident (MVA) on 10 February 2008 with fracture of his right ankle.  This was treated surgically on 15 and 28 February 2008 with the placement of hardware.  He was referred to physical therapy (PT) for rehabilitation, with improvement of function, but return to full duty was not anticipated and he was referred for an MEB.  In early May, he fell and put most of his weight on the right leg while still partial weight bearing.  An X-ray on 5 May 2008 showed that the ankle retained good alignment.  The narrative summary (NARSUM) was dated 14 May 2008 and based on an examination 2 days earlier.  Minimal improvement since surgery was noted.  On examination, the surgical scars were well healed, but mildly tender.  He was also diffusely tender and swollen over the entire ankle.  The range-of-motion (ROM) was reduced.  At the MEB examination on 28 May 2008, the CI remained in an “ortho” boot.  He was still non-weight bearing and using crutches.  The VA Compensation and Pension (C&P) examination was performed on 7 July 2008, the day before separation.  The CI reported that he had continued pain which was aggravated by walking and could not walk over 15 minutes.  He was not able to run.  He denied locking, giving way, or instability.  On examination, the ROM was painful and reduced as charted below.  There was tenderness over both aspects of the ankle including the scars.  His gait was abnormal secondary to pain.  X-rays showed the hardware.  Evidence of a definite fusion of the fracture was not present on X-ray and non-union was possible.  Loss of bone from disuse and early arthritis were also present.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Ankle ROM
(Degrees)	PT ~2 Mo. Pre-Sep	PT ~1 Mo. Pre-Sep	VA C&P 1 Day Pre-Sep	
Dorsiflexion (20 Normal)	2	5-10	5	
Plantar Flexion (45)	18	20	32	
Comment	Mechanical Limitation	No comment	Painful Motion	
§4.71a Rating	20%	20%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the ankle at 20%, coded 5271 (limitation of motion of the ankle) although the VA did so analogously.  The limitation in motion, present on the three examinations proximate to separation, supports a 20% rating.  The VA subsequently increased the ankle rating to 30%, effective 2 June 2011, 3 years after separation, determining that the limitation in motion was, as likely as not, functionally equivalent to ankylosis.  The VA rated the CI at 10% for the tender ankle scars, coded 7804.  The record does not show that the CI was restricted in the use of footwear after he was removed from the cast boot and returned to weight bearing.  The VA C&P was silent as to type of foot wear used or limitations.  The Board found no evidence to support the addition of the surgical scars as an additional unfitting condition at separation.  The Board concluded therefore that this condition could not be recommended for additional disability 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, AR20160003627 (PD201401151)

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