RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02614
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040806

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for a right ankle condition.  The right ankle pain 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/H1 profile and referred for an Medical Evaluation Board (MEB).  Chronic right ankle pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded left ear hearing loss for PEB adjudication.  The Informal PEB (IPEB) adjudicated the right ankle pain condition as unfitting, rated 0% with likely application of the Army Regulation (AR) 635-40.  The left ear hearing loss was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”  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 condition 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:

Service IPEB – Dated 20040618	VA* - (~2 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Pain	5010	0%	S/P Fracture Right Ankle Pain	5271	10%	20041002	
Left Ear Hearing Loss
[Not adjudicated by PEB]	Not Unfitting	Hearing Loss, Left Ear	6100	0%	20041002	
Other MEB/PEB Conditions x 0	Other x 2	
RATING:  0%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20041210 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Right Ankle Pain.  The MEB narrative summary (NARSUM) noted the CI fractured his right ankle 7 February 2003 and underwent surgery for open reduction internal fixation of the fracture (fx) 10 February 2003.  He was casted for approximately 2 months and then was placed in a CAM (controlled ankle motion) boot and participated in physical therapy for approximately 2 months.  After surgery right ankle X-rays noted the ankle was in good alignment with surgical hardware in place and magnetic resonance imaging on 5 September 2003 noted mild degenerative joint disease, with no apparent ligament, tendon, or cartilage injury.  The CI was still on profile when he was deployed for nearly 5 months; ankle pain and swelling continued.  After returning from deployment the CI was given a permanent profile and an MEB was initiated.

At the MEB orthopedic (ortho) consult on 18 March 2004, 5 months before separation, the CI reported right ankle pain.  The MEB ortho physical exam noted tenderness to palpation (TTP) over the ankle joint and tendons and there was no evidence of ankle instability.  Ankle X-rays noted a healed fx in anatomic alignment and evidence of an old avulsion fx (a small amount of bone is pulled away by ligament injury) of the medial malleolus (inner ankle).  At the NARSUM examination dated 10 May 2004, the CI reported chronic ankle pain and decreased motion.  The NARSUM physical exam noted painful range-of-motion (ROM), pain with toe dorsiflexion (DF), and pain with toe and heel walking.  There was no swelling and the ankle was stable.  Physical therapy measured ROM on 14 May 2004 (repeated three times) was ankle DF 15 degrees (normal 20) and plantar flexion 40 degrees (normal 45).

At the VA Compensation and Pension (C&P) exam on 2 October 2004, 2 months after separation, the CI reported chronic ankle pain increased by activity.  The VA exam noted a normal gait, without use of a cane or a crutch.  There was no swelling or TTP.  Ankle ROM was DF 20 degrees and PF 35 degrees.  Strength and sensation were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the ankle condition 0%, coded 5010 (Traumatic arthritis) and the VA rated it 10%, coded 5271 (Limited ankle motion).  The Board agreed that the evidence in record supported a 10% rating coded as either 5010 according to 5003 rating criteria for degenerative arthritis of a single major joint with limited motion or coded as 5271 IAW VASRD §4.59 (Painful motion) for painful, limited motion.  The Board reviewed to see if a higher rating was supported with any applicable code.  A 10% rating is the highest rating available for a single joint coded as 5010.  The 5271 rating criteria are subjective with 10% for “moderate” and 20% for “marked” limited ankle motion.  Member consensus was that the ankle ROM at the MEB NARSUM and C&P exams was minimally decreased and could not be characterized as more than “moderate” and this contention is also supported by the observation of a normal gait noted at the C&P exam.  Additionally, there was no evidence of malunion, surgical removal of the talus (astragalectomy), or ankylosis of the ankle or foot joints to support a higher rating.  Thus, the Board determined that the evidence supports a 10% rating for the ankle condition and no higher, and chose to code as 5271.  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 ankle condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left ear hearing loss was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Notes in the service treatment record indicated that the CI entered active duty with normal hearing in both ears and experienced noise trauma while deployed in June 2002.  An audiogram performed on 23 September 2003 noted high frequency hearing loss in the left ear and indicated the CI was fit for deployment and recommended full audiology consult after redeployment.  The MEB DD Form 2808, Report of Medical Examination, 6 May 2004 noted the CI had hearing loss and ringing in his left ear since 2002 that was not disqualifying and the NARSUM also noted that hearing loss in the left ear was not disqualifying.

The left ear hear loss was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All were reviewed and considered by the Board.   There was no performance based evidence in record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the left ear hearing loss condition and so no additional disability ratings are recommended.

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 likely reliance on the AR 635-40 for rating the right ankle condition was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the right ankle condition, the Board unanimously recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  In the matter of the contended left ear hearing loss condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 Pain	5271	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140523, 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 XXXXXXXXXX, AR20160003823 (PD201402614)

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 10% 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