RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02701
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050625

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Combat Engineer) medically separated for right ankle instability.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty; however, his physical profile authorized him to perform an alternate aerobic physical fitness test event.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “right ankle instability with pain” 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 ankle instability with 2+ laxity on ligament stress test” as unfitting, rated 10%, with application of the Veterans Affairs 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 20050428	VA* - (~6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Instability…	5299-5271	10%	Right Ankle Tendonitis	5024	10%	20051213	
Other x 0 (Not In Scope)	Other x 8 	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20060320 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Right Ankle Condition.  While deployed, the CI jumped from a military vehicle and twisted his right ankle.  Without definitive treatment, 3-month remote X-rays were reported as negative. He was able to complete his deployment, but not without additional twisting of his ankle presumably secondary to joint instability.  Upon re-deployment, his pain continued with right foot give-way while running; surgery was not recommended.  In April 2005, he was permanently profiled and was referred to a MEB.  At the MEB narrative summary examination in March 2005 (4 months before separation), the CI reported constant bilateral ankle pain.  He endorsed the inability to carry heavy explosives, perform road marches, run through mine fields, do 2-3 second rushes, or dig a fighting position.  The physical examination (PE) revealed decreased right ankle range-of-motion (ROM) with painful motion.  There was tenderness and instability about the right ankle.  The examiner rated the CI’s pain as “minimal/frequent” and assessed his prognosis as “good.”  

At the VA Compensation and Pension (C&P) examination in December 2005 (6 months after separation), the CI reported constant, mild to severe right ankle pain associated with frequent ankle give-way.  His PE revealed an antalgic gait.  There was tenderness and decreased (non-painful) ROM about the right ankle.  Repeat x-rays were reported as normal.  The VA’s diagnosis was bilateral ankle tendonitis.  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 ~4 Mo. Pre-Sep
(20050310) 	VA C&P ~6 Mo. Post-Sep
(20051213) 	
Dorsiflexion (20 Normal)	20	15	
Plantar Flexion (45)	25	40	
Comment	painful motion; tenderness; 2(+) instability 	tenderness	
§4.71a Rating	10%-20%	0%-10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle under the analogous code of 5299-5271 (ankle; limitation of motion) at 10% citing “moderate” laxity on ligament stress test.  The VA rated the condition under 5024 (tenosynovitis) at 10% citing painful or limited motion.  The Board first considered examination probative value (PV) in this case having a significant variation in pre- and post- separation exam findings.  Members concluded that the MEB exam is apportioned a greater degree of PV due to its closer proximity to the service separation date as well as its completeness of clinical examination indicating the presence of joint instability.  The VA examination was void of any reference to the presence or absence of joint instability.  
  
The Board considered that near the time of service separation, the CI had ROM loss of his right ankle and deliberated if the level was moderate (10%), or rose to the level of marked (20%) limitation under the primary code of 5271.  There was no evidence of joint ankylosis and, therefore, the CI’s condition did not meet 5270 (ankle; ankylosis) criteria.  The Board also considered possible rating under code 5262 (impairment of tibia and fibula) at moderate (20%) or marked (30%) ankle disability.  However, since pathology had nothing to do with the bony aspects of the tibia or fibula (only ligament involvement), the Board considered 5262 a poor clinical fit.  There were no incapacitating exacerbations of his condition and he continued to work within his profiled restrictions.  There was enough limitation of motion, as well as painful motion to rate under 5271 and concede VASRD §4.59.  Additionally, consideration was given in rating according to VASRD §4.40 (functional loss) given the CI’s antalgic gait identified at the VA C&P examination.  Upon deliberation the Board conceded to the limited ROM depicted in the pre-separation MEB examination.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB’s 10% disability rating of 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 20140518, 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, AR20160003736 (PD201402701)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA