RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02009
BRANCH OF SERVICE:  Army	BOARD DATE:  20150120
SEPARATION DATE:  20031008

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Combat Engineer) medically separated for a right ankle fracture.  The fracture 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).  “Right ankle fracture” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “right distal fibular fracture” as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please 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 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 20030908	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Distal Fibular Fracture	5009-5003	0%	Right Ankle, Chronic Sprain with History of Fracture of Distal Fibula	5271	10%	20031231	
Other x 0 (Not In Scope)	Other x 3 	
RATING:  0%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20100806 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:  The Board acknowledges that the original VA Compensation and Pension examination and original VARD were not available in the evidence before it.  The missing evidence may be referenced below in relevant context; and, it is not suspected that the missing evidence would significantly alter the Board’s recommendations.

Right Ankle Condition.  The CI originally fractured his right ankle during physical training in January 2003.  X-rays confirmed a distal fibular fracture.  His condition did not require surgical intervention, but rather a prolonged course of immobilization, pain medication, and physical therapy.  Repeat X-rays indicated a slower than normal re-growth of bone which prompted additional treatment with a bone stimulator as to enhance healing.  Despite all such treatment measures, his pain continued and a MEB was initiated.  At the MEB narrative summary (NARSUM) performed on 10 July 2003 (3 months prior to separation), the CI endorsed increased right ankle pain with prolonged walking, standing and any type of strenuous activity.  The physical examination (PE) noted minimal tenderness over the outside of his right ankle.  All other PE parameters were normal including range-of-motion (ROM).  The diagnosis was “clinically” healed right ankle fracture.  The examiner additionally assessed that a return to basic training like activities would further risk additional injury.

At a VA orthopedic examination performed on 26 November 2003 (7 weeks after separation) the examiner noted, “[The CI] is doing well with no new complaints and improvement of pain.”  The PE was essentially unchanged from the prior military NARSUM exam noting tenderness on the outside of the left ankle.  The diagnosis was distal fibular fracture and non-union.  The 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 ~12 weeks Pre-Sep
	
PT ~4 weeks Pre-Sep
	
VA ‘Ortho’ ~7 weeks Post-Sep
	
Dorsiflexion (20 Normal)	‘full range of motion’	‘within normal limits’	‘full range of motion’	
Plantar Flexion (45)				
Comment	tenderness	normal gait;
painful motion	tenderness	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating analogous to 5003 (degenerative arthritis) cited “completely healed right fibular fracture with residual pain on motion.”  The VA’s 10% rating was under code 5271 (ankle limitation of motion) for “moderate” limitation.  Board members first agreed that sufficient evidence of painful motion was present to support a rating of 10% IAW VASRD §4.59.  In light of the VA (Orthopedic) diagnosis including non-union, Board members additionally considered analogous coding under 5273 (mal-union of [heel bone]) at 10% (moderate) deformity and 20% (marked) deformity, or 5262 (tibia and fibula impairment) at 10% (slight) ankle disability or 20% (moderate) ankle disability.  Members agreed that the lack of anatomic “deformity” in this case proved a poor clinical fit under code 5273.  Members also agreed that any degree of non-union present was of minimal to slight severity; thus yielding a maximum of 10% under 5262.  In the absence of ankylosis (frozen joint) or astragalectomy (surgical removal of the talus), there are no other available alternate ankle joint codes available.  The only route to a higher rating would be 20% under 5271 for “marked” limitation of motion.  The Board agreed that the preponderance of the ROM evidence was more reasonably characterized as “moderate” in support of a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% 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, the Board unanimously recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board 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	
Right Ankle Fracture	5271	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140429 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, AR20150010462 (PD201402009)

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,   I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization 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:

Encl		     XXXXXXXXXXXXXXX
		     Deputy Assistant Secretary of the Army
		         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA