RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02600
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150219
SEPARATION DATE:  20061012

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E1 (Basic Trainee) medically separated for right (dominant) wrist and right ankle conditions.  The conditions 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 U2L3 profile and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “digital [sic] right radius fracture, comminuted, undisplaced” and “posteroinferior fracture at the posterior inferior corner of the talus, not involving the ankle joint, minimal displacement,” were forwarded (as the only submissions) to the Physical Evaluation Board (PEB) IAW AR 40-501 (each judged to fail retention standards).  The Informal PEB (IPEB) consolidated the MEB diagnoses as a single unfitting condition (“chronic pain of the right wrist and ankle with onset from injuries in Jun/Jul 06”), rated 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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:

IPEB – Dated 20061004	VA - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain of the Right Wrist and Ankle …	5099-5003	0%	Right Ankle Fracture [Detailed]	5271-5024	10%*	STR	
			Distal Right Wrist Fracture	5215	0%*	STR	
Other x 0 (Not In Scope)	Other x 0 	
RATING:  0%	RATING:  10%	
Derived from VA Rating Decision (VARD) dated 20061101 (most proximate to date of separation [DOS]).
* Ankle rating 10% and wrist rating raised to 10% (both retroeffective to DOS, codes unchanged) by VARD dated 20070404 and based on exam of 20070228 (4½ months post-separation).

ANALYSIS SUMMARY:  The PEB combined two joint conditions under a single disability rating, coded analogously to 5003.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the each condition is presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Right Ankle Condition.  The STR documents an initial emergency room (ER) evaluation of the right ankle on 24 June 2006 (4 months prior to separation), after an inversion injury 2 days earlier during the CI’s first week of basic training.  The X-ray from that visit did not identify a fracture, but he was discharged in a splint and on crutches.  An orthopedic note from August 2006 (2 months prior to separation) indicates that the MEB-submitted chip-type fracture of the talus [main weight bearing bone of the ankle] with minimal displacement was subsequently diagnosed by magnetic resonance imaging (date unknown); and, documents a follow-up X-ray showing no fracture displacement.  That same note documents “walking full weight bearing without limp, says he has pain in the ankle if runs and occasionally on stairs.”  The only STR entry after that is a follow-up exam documenting normal ankle range-of-motion (ROM) measured in all planes (by the same orthopedist who prepared the narrative summary [NARSUM] that same day).

The NARSUM was conducted on 22 August (7 weeks prior to separation); and, documented that the ankle had “remained swollen and painful since [the original injury] ... [with] ... some slight increased functional capability during the past month, but he remains unable to perform military training because of this ankle injury.”  The physical exam noted that the CI was “walking unaided without a limp” and recorded “mildly swollen” as the only positive finding; citing the normal ROM as above (without comment regarding painful motion).  The commander’s statement was cursory, referring only to the CI’s inability to continue training which was attributed to “a broken right arm.”

A VA Compensation and Pension (C&P) examination was conducted on 28 February 2007 (4 months after separation), and documented daily brief (“0.1 hour”) episodes of right ankle pain rated 6/10 with limitations of “difficulty running, walking for long periods.”  The VA physical exam recorded a normal gait, with “signs of edema and tenderness” and no weakness or fatigue with repetitive motion.  Normal ROM measurements specifying pain at end excursion were documented.
The Board directed attention to its recommendations based on the above evidence; first considering if the right ankle condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting (as per introduction).  Members agreed that since the CI was separated for the inability to sustain the physical rigors of basic training, a fair fitness standard for both conditions should be the ability to meet these requirements.  The NARSUM clearly specified that the ankle limitations precluded such training.  The condition was judged to fail retention standards and was the basis for the L3 profile.  All members agreed therefore that the condition was reasonably justified as separately unfitting as established above; and, accordingly a separate rating is recommended.

The Board then turned to deliberation regarding the appropriate coding and rating recommendation for the ankle condition.  The VA rated analogously under 5024 (tenosynovitis) which defaults to criteria of 5003 (degenerative arthritis); and, the original rating decision (based on STR evidence) conceded painful motion (VASRD §4.59) and functional loss (§4.40) to achieve the minimum 10% rating under those criteria.  The only ankle joint code under VASRD §4.71a which can be considered in this case is 5271 (limited motion); which, in light of the normal ROM, can confer a minimum 10% rating only if §4.59 or §4.40 is conceded.  Although there was no directed evidence from the NARSUM or STR that painful motion was present, there was no evidence refuting it; and, painful motion was specified by the after separation C&P examiner.  Furthermore, the §4.40 stipulation that “a part which becomes painful on use must be regarded as seriously disabled” is reasonably reconciled with the evidence.  Members agreed, therefore, that §4.59 and/or §4.40 should be conceded in support of a minimum 10% rating under either 5024 or 5271.  Consideration was also given to analogous coding under 5299-5262 (tibia and fibula, impairment of) which confers ratings for contiguous ankle disability: 10% for “slight,” 20% for “moderate” and 30% for “severe.”  Members agreed, however, that the fairly modest functional limitations in evidence at separation could not be reasonably characterized as moderate or severe; and, the 5299-5262 option thus confers no advantage.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the right ankle condition; proposing code 5099-5010 (traumatic arthritis, defaulting to 5003 rating) for its clinical compatibility.

Right Wrist Condition.  There is an ER entry for this injury on 3 July 2006, after a fall from a height while negotiating an obstacle course; with X-ray demonstration of a right wrist fracture (distal radius, non-displaced).  It is noted that this was 9 days after the ER visit for the ankle injury, and it must be assumed that this was before the fracture was realized (with splint and crutches no longer in use).  The same August 2006 orthopedic evaluation cited above for the ankle fracture documented, “Pain in the right wrist joint(s) now relieved after 6 weeks in cast.  Clinical union [fracture healed].”  There was no STR documentation of painful motion.

The NARSUM documented, “His wrist is essentially pain free but still has some residual stiffness, has not been fully mobilized following his casting.  His wrist is doing very well.”  No limitations specific to the upper extremity were noted.  The physical exam recorded “no swelling or deformity ... full [ROM] ... no tenderness” with no positive findings.  There was no documentation of painful motion.   As above, the commander’s statement implicated the right arm fracture, although the profile was U2.

The post-separation VA C&P examination (same referenced in ankle topic) documented constant wrist pain rated 7/10 with functional limitations of “difficulty lifting and writing.”  The VA physical exam noted tenderness with ROM measurements of 40 degrees dorsiflexion (normal 70 degrees) and 70 degrees palmar flexion (normal 80 degrees), documenting painful motion.

The Board directed attention to its recommendation based on the above evidence; first considering whether the right wrist condition was reasonably justified as separately unfitting as specified above.  Although the NARSUM indicates that the wrist injury was progressing well, it is quite questionable whether it would have permitted the CI to continue the rigors of early military training.  Even some months later, without that physical stress, the VA evidence suggests that significant impairment remained.  Although the profile was U2, the MEB physician opined that the condition still failed retention standards; and, the commander’s statement indicates that it was considered to be an impediment to training.  After due deliberation in consideration of the totality of the evidence, member consensus was that the right wrist condition was reasonably justified as separately unfitting; and, thus eligible for consideration of additional disability rating.

The Board then turned to deliberation regarding the appropriate coding and rating recommendation for the ankle condition.  The VA rated under 5215 (wrist, limitation of motion), and arrived at a 0% rating based on service evidence only.  Members deliberated whether the documentation of painful motion in the subsequent VA C&P examination 4 months after separation, or concession to the stipulations of §4.40 as elaborated in the ankle discussion, could be justified in defense of the minimal compensable rating of 10% under 5003 criteria.  After due deliberation, member consensus was that reasonable doubt favored concession of either or both §4.59 and §4.40.  Considering all of the evidence and conceding reasonable doubt, the Board’s consensus recommendation is a 10% rating for the right wrist condition; proposing code 5099-5010 as with the 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating was operant in this case and it was adjudicated independently of that policy by this Board.  In the matter of the right ankle and right wrist conditions, the Board, by a majority vote, recommends that it be re-adjudicated for separate conditions as follows: a separately unfitting right ankle condition coded 5099-5010 and rated 10%; and, a separately unfitting right wrist condition coded 5099-5010 and rated 10%; both 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	
Fracture with Traumatic Arthritis, Right Ankle 	5099-5010	10%	
Fracture with Traumatic Arthritis, Right Wrist	5099-5010	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140524, 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 XXXXXXXXXXXXXXXXXX, AR20160002816 (PD201402600)

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 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