RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01199
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20081217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Guard, E2, Basic Trainee, medically separated for “left ankle, limitation of motion” with a disability rating of 10%.

CI CONTENTION:  “Left Medial Malleolus fracture”  The applicant’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 - 20081002	VARD - 20090824	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Ankle, Limitation of Motion	5271	10%	Residuals, Left Ankle, Status Post (S/P) Open Reduction
Internal Fixation(ORIF)	5271	10%	20090803	
			Residual Scar, Left Ankle, S/P ORIF	7804	10%	20090803	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Left Ankle.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent open left ankle surgery (ORIF) with two screws in place in March 2008 for a left ankle (tibia) fracture.  Post-operative radiographs (X-rays) in March 2008 showed hardware in place with good alignment.  The CI had continued ankle pain with weight bearing limitations and an inability to return to training.  X-rays in June 2008 showed hardware in place with new focal soft tissue swelling over the medial aspect of the distal third of the tibia and diffuse osteoporosis of the hind foot and midfoot.  Despite treatment, the left ankle condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military training requirements and the CI was referred for an MEB.  The MEB forwarded “left ankle dorsiflexion to 10 degrees” for PEB adjudication.  

At the physical therapy evaluation dated 23 July 2008, approximately 5 months prior to separation, the CI was wearing a cam boot (walker boot/brace) per orthopedics.  Examination demonstrated left foot decrease muscle tone, muscle twitching with volitional movements, and gait consistent with minimal weight bearing to the left leg.  On palpation there was pain and hypersensitivity to the entire left ankle and distal tibia.  Left ankle motor strength was decreased (2+/5) in all planes.  Range of motion (ROM) was limited in all planes with pain and is charted below with the MEB examination.

At the MEB NARSUM examination dated 8 September 2008, approximately 3 months prior to separation, the CI reported that he was unable to bear full weight and needed his crutches and cam walker due to severe left ankle pain.  He reported that he had difficulty walking any distance over 20 to 30 feet without crutches due to his constant ankle pain.  Any ankle movement caused a sharp pain over the medial aspect of his foot and back in his heel.  The CI had functional limitations of an inability to run, jump, march, and squat or kneel, carry heavy objects or do activities required of a basic trainee.  The physical examination indicated that the CI was using a cam walker and that his surgical incision was well healed, but hypersensitive to touch.  The examiner stated the CI was “… not hypersensitive in areas away from his incision site, but again, directly over his incision site, he winces and jerks away with even light touch.”  There was increased pain with any forced plantar flexion or dorsiflexion.  

At the VA Compensation and Pension (C&P) examination dated 3 August 2009 performed approximately 17 months after separation; the CI reported ankle pain rated at 6/10 at rest and 8/10 with activity.  He indicated he used a cane and brace, and used a golf cart at work since he could not stand greater than 3-5 minutes.  He used anti-inflammatory and neuroactive medication (Neurontin).  The physical examination reported an antalgic gait, mild soft tissue swelling, and left calf muscle atrophy (left 34cm, right 36cm) with calf weakness (3/5 motor strength).  Sensation in the left foot was normal.  The 5cm vertical surgical scar was exquisitely tender with slight edema.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5271 code (ankle, limited motion of), citing dorsiflexion to 2 degrees and passive dorsiflexion to 13 degrees as moderate limitation of motion.  The VA also assigned a 10% rating using the 5271 code based on the VA C&P examination 8 months after separation, citing moderate limited ankle motion.  The VA also assigned a 10% rating using the code 7804 (scar(s), unstable or painful) citing a superficial scar that was painful on examination.  
The Board adjudged that the MEB examination had the highest probative value for rating, and that the post-separation VA examination indicated slight improvement.  The Board considered that the CI’s ankle marked limited ROM, weakness, painful scar, and functional loss supported a disability picture best described under the VASRD code for other foot injuries (5284).  Any disability from the scar condition was considered under the 5284 rating.  All Board members agreed that the “severe” level (30%) was supported, but did not reach the level of loss of use of the foot for any higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the left ankle condition.

BOARD FINDINGS:  In the matter of the left ankle condition, the Board unanimously recommends a disability rating of 30%, coded 5284 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date prior to medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Left Ankle, Limitation of Motion	5284	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140302, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160006040 (PD201401199)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the
enclosed recommendation of the Department of Defense Physical Disability Board of
Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual's separation as a permanent disability retirement with the
combined disability rating of 30% effective the date of the individual's original medical
separation for disability with severance pay.

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:

a. Providing a correction to the individual's separation document showing that
the individual was separated by reason of permanent disability retirement effective the
date of the original medical separation for disability with severance pay.

b. Providing orders showing that the individual was retired with permanent
disability effective the date of the original medical separation for disability with
severance pay.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will
account for recoupment of severance pay, and payment of permanent retired pay at
30% effective the date of the original medical separation for disability with severance
pay.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP)
and medical TRICARE retiree options.

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:

Enclosure
CF:
( ) DoD PDBR
( ) DVA