RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01820
BRANCH OF SERVICE:  Army	BOARD DATE:  20141231
SEPARATION DATE:  20071025

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Light Wheel Vehicle Mechanic) medically separated for chronic right foot pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right foot condition, characterized as “right talar osteochondral lesion” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic right foot pain due to talar osteochondral lesion” as unfitting, rated 10% citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Consider all conditions”

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 20070824	VA - (5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Foot Pain due to Talar Osteochondral Lesion	5099-5003	10%	Osteochondral Lesion of the Talar Dome, Right Ankle	5271	10%	20080414	
			Scar, Right Ankle	7804	10%	20080414	
Other x 0 (Not In Scope)	Other x 16	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20080626 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  

Right Foot Condition. The record shows that the CI was first evaluated for a right ankle sprain on 10 April 2006.  The X-rays were normal and he was treated conservatively with medications, crutches and duty restrictions.  He improved but had persistent pain.  A bone scan on 28 June 2006 was normal.  Magnetic resonance imaging on 5 July 2006 showed a defect in the cartilage of one of the ankle bones (chrondral defect of the talus).  He then underwent surgery on 21 September 2006.  His post-operative course was complicated by a return to weight bearing at 2+ weeks against medical advice.  Otherwise, it was unremarkable but for persistent pain at the site of one of the bone screws.  On 14 May 2007, the surgical hardware was removed and scar tissue from the first surgery was debrided.  Post-operatively, he did well, but had persistent pain and was thought to not be likely to return to full duty.  The possibility of an MEB was discussed with the CI and he chose that option.  He continued physical therapy.  The narrative summary (NARSUM) was dated 6 August 2007, approximately 3 months prior to separation.  It noted the above history.  The range-of-motion (ROM) was decreased as charted below.  Sensation and motor examinations were normal.  He was noted to be tender over the surgery site, but no comment was made on a scar.  He was referred for MEB due to the delay in his healing and (potential) future limitations.  He had been in a CAM walker until the prior month and was still profiled for a shoe of comfort and a brace.  At the VA Compensation and Pension (C&P) examination performed on 14 April 2008, 5 months after separation, the CI reported, chronic pain, swelling and bruising at the surgical site of the ankle.  He did not use an assistive device for ambulation.  On examination, his gait was normal.  The ankle was swollen and there was a well-healed, but tender scar present.  Motion was painful and limited as charted below.  The neurological examination (under the back examination) was normal.  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)	MEB ~2.5 Mo. Pre-Sep	PT ~1.5 Mo. Pre-Sep	VA C&P ~5.5 Mo. Post-Sep	
Dorsiflexion (20 Normal)	5
(“average reading of 3”)	10	10	
Plantar Flexion (45)	>30	35	20	
Comment	Three months post-operative; normal neurological examination	Tender to palpation; normal neurological examination		
§4.71a Rating	20%	10%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The CI was in a shoe of comfort at the time of the NARSUM, but was still less than 3 months out from the second surgery.  The gait was noted as being normal at the time of the VA C&P, over 5 months after separation and almost 11 months after the second surgery.  It is given higher probative value due to the greater time for recovery from the second procedure.  However, this did not affect the rating.  The PEB and VA both adjudicated a 10% rating, the former citing the pain policy and the latter rating on limited and painful motion.  The Board considered the codes available for the ankle and found no route to a rating higher than the 10% adjudicated by both.  It observed that the code used by the VA, 5271 (ankle limitation of motion) provided a better description than the 5003 code used by the PEB, but provided no advantage to the CI.  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.

The Board then considered if the evidence supported the addition of the scar condition as a separately unfitting condition.  The CI was in a shoe for comfort at the time of the profile, but had a second surgery less than 3 months previously.  The scar was tender at the time of the VA C&P examination, but the gait was normal and there was no indication that the scar limited the selection of foot wear in the note.  The evidence available for review does not support the addition of the ankle scar as an additionally unfitting condition at separation.

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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the right ankle condition was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the right ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right ankle scar condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.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 20140425, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20150008224 (PD201401820)

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