RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	    CASE:  PD-2014-01257
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040803

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a traditional drilling National Guard E-3 (Unit Supply Specialist) medically separated for left ankle pain, rated at 10%.  

CI CONTENTION:  The applicant contends that he was given a higher rating for his foot condition by the VA and that he has a PTSD condition, which should have been unfitting.  His 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:  

IPEB - Dated 20040330	VA* - (~9 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posttraumatic Arthritis, Left Ankle	5010	10%	Status Post Left Calcaneal Fracture …	5284	30%	20050503	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7 	
RATING:  10%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20050803 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Left Ankle Condition.  The record shows that the CI injured his left foot/ankle on 4 July 2003 while clearing a wall.  He was initially treated conservatively with duty limitations, medications, ice, and elevation.  His pain continued and he was given crutches for non-weight bearing.  X-rays several days after the injury were normal and no fracture was detected.  He was then referred to orthopedics for persistent pain.  Repeat X-rays showed a fracture of the calcaneus (heel bone) with moderate displacement.  Despite continued conservative management, his pain persisted and he was evacuated out of theater in October 2003.  He was seen in orthopedics on 19 November 2003 and noted to have a healed fracture with sub-talar arthritis.  The range-of-motion (ROM) is charted below.  He was issued a P3 and MEB initiated.  An orthopedic evaluation on 4 January 2004 noted 10 degrees dorsiflexion, 45 degrees plantar flexion, 10 degrees inversion, and 20 degrees eversion.  At the MEB examination on 7 January 2004, the CI reported chronic left foot pain.  The MEB physical examiner noted 20 degrees dorsiflexion, 25 degrees plantar flexion, 20 degrees inversion, and 25 degrees eversion.  When seen in orthopedics 2 weeks later, on 21 January 2004, the ROM was slightly improved (for dorsiflexion) at 15 degrees dorsiflexion, 45 degrees plantar flexion, 10 degrees inversion, and 20 degrees eversion.  Repeat measurements by a different examiner 6 days later on 27 January 2004 were identical.  The narrative summary (NARSUM) was dated 5 February 2004 and noted that the CI had progressed from a walker to a cane, but still had persistent pain.  He was noted to have an inability for full weight bearing.  The heel, ankle, and forefoot were tender to palpation.  Stability was “questionable.”  The ROM included 30 degrees dorsiflexion and 30 degrees plantar flexion.  An evaluation by an internal medicine specialist on 12 March 2004, less than 5 months before separation, showed full ROM for the left lower extremity.  The use of an assistive device was not recorded.  A VA primary care initial visit on 1 October 2004, 2 months after separation, noted normal strength and ROM of the musculoskeletal system.  The CI reported pain in the left ankle area with walking or prolonged standing.  Neither an abnormal gait nor the use of an assistive device was recorded.  A psychiatry note dated 7 January 2005 documented that the CI had 3 jobs since separation: a daily laborer, a labor pool, and painting for 2 weeks.  The examiner noted that the CI had difficulty being around people.  One week later he was noted to use a cane, but to have no abnormal movements.  In mental health on 25 February 2005, he reported that he helped his father painting houses.  He was seen again on 23 March 2005 in primary care and reported that he had tried to work, but could not stand on his feet for any length of time.  No swelling (of the feet) was noted, but he did use a cane.  In physical therapy on 22 April 2005, he reported left heel pain which was worse with standing and better with sitting.  His ROM was noted to be either normal or 90% of normal in all planes.  His strength was within functional limits.  He reported the use of a cane on occasion.  His gait was noted to be “I and safe” (intact and safe).  

At the VA Compensation and Pension (C&P) examination performed by an orthopedic surgeon on 3 May 2005, 9 months after separation, the CI reported that he was unemployed and had difficulty with the activities of daily living due to pain.  He attributed left hip, low back, and right ankle pain to the left foot/ankle condition.  On examination, he had a moderate antalgic gait and used a cane.  The ROM was reduced, but so was that of the unaffected right ankle.  The CI had 0 degrees of inversion and eversion and fibrosis (scarring) was thought to be present and responsible for the loss of motion.  An effusion was present.  The CI was placed on a treadmill, but was only able to walk at 0.6 mph for 30 seconds before he stopped due to severe pain.  X-rays showed arthritis of the talo-calcaneal joint (heel bones).  He was diagnosed with a chronic ankle sprain and osteoarthritis.  Four weeks later in mental health on 31 May 2005, the CI reported that he was working full time as a painter.  The CI was admitted for suicidal ideation that day through 3 June 2005.  He endorsed actively seeking service connection for both his foot and for PTSD (post-traumatic stress disorder) as documented on the 3 June 2005 discharge summary.  A social work note dated 29 June 2005 recorded that the CI was working painting houses.  A psychology note dated 26 July 2005 recorded that the CI was considering returning to Kuwait to work as a contractor.  A mental health C&P dated 6 September 2006 noted that the CI was unemployed for less than a year.  He had worked as a painter, but had difficulty with standing and bending and his employers could not accommodate this.  A mental health C&P dated 10 June 2008 recorded that the CI stopped painting houses in 2007.  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)	Ortho ~ 8 Months Pre-Sep	H&P ~7 Mo. Pre-Sep	MEB ~6 Mo. Pre-Sep	VA C&P ~9 Mo. Post-Sep	
Dorsiflexion (20 Normal)	30	20	30	8 (12 Right)	
Plantar Flexion (45)	40	25	30	14 (22 right)	
Comment	Subtalar motion 10-20			Unaffected right side less than VA normal values as well	
§4.71a Rating	10%	10%	10%	10/20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the CI for post-traumatic arthritis at 10%, using the code 5010 (traumatic arthritis).  The VA rated the CI at 30%, coded 5284 (foot injuries, severe), based on the VA C&P evaluation.  The Board considered the totality of evidence.  The CI clearly had a fracture of his heel bone which necessitated the use of a walker and then a cane.  The examinations leading up to separation indicate improving function and near normal ROM.  Following separation, the CI worked as a manual laborer.  While he reported significant impairment to the VA orthopedic C&P examiner and could only walk for 30 seconds at a very slow pace, he nonetheless reported that he was working as a house painter full time 4 weeks later and considering return to a combat zone as a contractor 2 months after that.  The ROM recorded at the VA examination was reduced, but only slightly less than the unaffected right side.  Moreover, it is not consistent with the other measurements proximate to separation including the examination in physical therapy done 2 weeks earlier.  For these reasons, the probative value of the VA orthopedic C&P examination is reduced.  The Board noted that the CI, through counsel, argued that the better code for the condition is 5284.  The Board considered this code as well as the codes 5010 and 5271 (limitation of motion of the ankle).  The Board determined that all three codes are equally accurate in describing the disability.  The 5284 code affords a higher rating though and is therefore used.  The Board considered if the level of disability was moderate, moderately severe, or severe.  It noted that the clinical notes closest to separation (before and after) indicate minimal impairment.  This is not consistent with a severe level of disability.  The CI worked as a manual laborer or painter following separation and considered deploying to a combat zone as a contractor within a year of separation.  This evidence, and the ROM, supports a moderate level of disability.  However, the CI was also noted to use a cane and to have a painful gait, supporting as finding of moderately severe impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the post-traumatic arthritis of the left ankle condition, coded 5284.  

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 disability rating of 20%, coded 5284 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

The Board therefore recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Posttraumatic Arthritis, Left Ankle	5284	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140309, 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, AR20160003670 (PD201401257)

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, accept the Board’s recommendation to modify the deceased individual’s disability rating to 20% without re-characterization 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