RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01298
BRANCH OF SERVICE:  Army	BOARD DATE:  20150311
SEPARATION DATE:  20060427

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Basic Trainee) medically separated for a right ankle injury.  The ankle condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but he was authorized to perform an alternate physical fitness test.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The ankle condition, characterized as “right Weber A ankle fracture of the malleolus, undisplaced with bruise to talus and os calcis and chronic right ankle pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “right Weber A ankle fracture from inversion injury” as unfitting, rated 10%, with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was not given any other options I planned to retire from the military and was not given the option to contest the discharge or seek early retirement.  Shortly after my rating was increased to a level where medical retirement would have been the likely outcome.”

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 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 IPEB – Dated 20060420	VA - (16 Mos.Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Weber A Ankle Fracture	5099-5003	10%	Status Post Right Lateral Malleolus Fracture	5271	10%	20070825	
Other x 0  (Not in Scope)	Other x 2 (Not in Scope)	
RATING:  10%	RATING:  20%	
Derived from VA Rating Decision (VARD) dated 20071019 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Ankle Condition.  The narrative summary (NARSUM) notes the CI fractured his right ankle on 8 October 2005 during training.  The MEB report, prepared by the CI’s treating orthopedic specialist, included a summary of orthopedic treatment visits.  Ankle X-rays performed on 11 October 2005 showed a non-displaced fracture of the lateral malleolus (outer ankle) below the level of the ankle mortise.  The CI was given crutches and a controlled ankle motion (CAM) walker.  Serial X-rays initially indicated non-union of the fracture but follow-up visits indicated that the ankle gradually improved.  Stress X-rays showed the joint was stable and the orthopedic doctor noted that either bony or fibrous union was occurring.  A note on 15 February 2006 indicated full range-of-motion (ROM) and good stability, with numbness and pain anterior to the lateral malleolus.  According to the NARSUM electrodiagnostic studies were normal.  The final visit summary dated 13 March 2006 indicated the CI reported continued pain and swelling of the ankle at the end of the day.  On exam there was mild swelling of the lateral malleolus.  There was normal gait noted, including heel and toe walking, with full ankle ROM and intact sensation and pulses.  Magnetic resonance imaging on 13 March 2006 noted healing of the fracture and a bone bruise of the calcaneus.

At the MEB examination on 31 March 2006, a month prior to separation, the CI reported right ankle pain and there was no additional MEB physical exam noted other than the summarized orthopedic visits.

At the VA Compensation and Pension (C&P) General Medical examination on 25 August 2007, 16 months after separation, the CI reported right ankle pain that limited his activities.  The examiner noted a normal, slow gait and noted that the orthopedic pain was to be evaluated by a specialist.  There was no additional C&P exam in record, but the 19 October 2007 VARD listed VA examinations on that date.  The VARD summarized the examination and noted that the CI reported intermittent ankle pain with prolonged weight bearing activity, but he no longer used a brace.  Ankle ROM was dorsiflexion of 10 degrees (normal 20) and plantar flexion of 35 degrees (normal 45), without pain, and inversion and eversion without pain.  There was mild tenderness along a ligament, without instability.  Ankle X-rays showed a well healed fracture and MRI showed mild degenerative changes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, coded 5099-5003 (analogous to degenerative arthritis) and the VA rated it 10%, coded 5271 (limited ankle motion).  The Board agreed that the evidence in record at the time of separation supports the 10% rating, coded either as 5003 for painful, limited ROM of a major joint with imaging evidence of arthritis or as 5271 for painful motion, with consideration of VASRD §4.59 (painful motion).  The Board reviewed to see if a higher evaluation was achieved with any applicable code but there was no evidence of malunion or nonunion of the tibia or fibula, or ankylosis, deformity, or any other ratable impairment of the ankle to provide a higher rating than 10%.  The Board makes note that the initial VA C&P was 16 months after separation.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to after separation evidence.  After separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.  Thus, although the ankle ROM noted in the VARD may not reflect disability at separation, in this case it also supports a 10% rating for moderate limited ankle ROM, coded 5271.  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:  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 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.

RECOMMENDATION:  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 2014-01298, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013435 (PD201401298)

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:

Encl		XXXXXXXXXXXXXXX
		Deputy Assistant Secretary of the Army
		    (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA