RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02959
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040314

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Bradley Fighting Vehicle Mechanic) medically separated for “status post open reduction of right ankle fracture,” rated at 10%. 

CI CONTENTION:  The CI requested consideration of all MEB/PEB conditions.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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 20040223	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/p Open Reduction of Right Ankle Fracture	5271	10%	Weber Fracture, S/p Open Reduction…Right Ankle	5299-5262	20%	STR	
			Scar; Right Lateral Malleolus…	7805	0%	STR	
Other x 0 (Not In Scope)	Other x 0  (Not in Scope)	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20040318(most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

S/P Open Reduction Internal Fixation (ORIF) of Right Ankle Fracture Condition.   The service treatment record (STR) only had one note related to the CI’s right ankle injury dated 12 December 2003, which indicated he injured it in a twisting action.  The examiner noted severe swelling and the impression was “R/O fracture.”  The CI was sent directly to radiology for X-rays, given crutches, and was referred to orthopedics for evaluation.  The MEB narrative summary (NARSUM) dated 20 January 2004 noted the CI slipped in the barracks on 11 December 2003 and sustained a twisting injury to his right ankle.  In the Emergency Room his ankle was swollen and somewhat deformed.  X-rays revealed a Weber B fracture (of the fibula bone) of the ankle with significant displacement of the ankle mortise (the arch formed by the medial and lateral malleoli (inner and outer portions of the ankle) and the articular surface of the tibia (plafond)).  One day later he underwent an open reduction internal fixation and had an unremarkable postoperative course.  He was unable to complete his AIT training and was expected to be unable to perform full military duties for a period which might reach one year post-injury.  At the time of the NARSUM examination, he reported constant and slight pain mostly related to walking.  Physical examination revealed abnormalities confined to the area of the right ankle.  A well-healed surgical scar was present over the lateral malleolus.  The ankle was stiff due to prolonged immobilization following the surgery.  The range-of-motion (ROM) measurements were dorsiflexion 10 degrees (Normal 20 degrees), plantar flexion 30 degrees (Normal 45 degrees), inversion 30 degrees (American Academy of Orthopedic Surgeons (AAOS) Normal 35 degrees), and eversion 10 degrees (AAOS Normal 15 degrees).  There was no evidence of infection.  Postoperative X-rays revealed that the ankle joint mortise was restored and the fibular fracture was fixed and the fracture position was anatomic and the hardware was in an appropriate position.

The commander’s statement dated 14 January 2004 indicated the CI suffered from a left foot injury and was physically incapable of performing his duties as a Bradley Fighting Vehicle mechanic, which routinely required work in confined spaces, running, and mounting and dismounting various vehicles under a variety of tactical conditions.  The CI indicated on the Report of Medical History (DD Form 2807-1) dated 14 January 2004 a recent fracture of the right fibula on 12 December 2003 and “Internal fixture attached to right fibula at 19 years.”  A permanent L3 profile was issued on 23 January 2004 for right ankle pain (recent fracture) with limitations of no physical fitness testing, no wearing load bearing equipment (LBE) or a backpack, no marching, no lifting greater than 20 pounds, and no squatting or rucking.  On the Report of Medical Examination (DD Form 2808) for the MEB physical examination dated 28 January 2004 the examiner noted weakness, swelling, pain and limited ROM of the right ankle along with a 5-inch surgical scar of the lateral right ankle.  The CI used crutches and had an antalgic gait with difficulty weight-bearing.  

No VA Compensation and Pension (C&P) examination was performed proximate to separation and the VA relied on the STR for examination and rating purposes.  Temporally remote VA C&P examinations more than 8 and 10 years post-separation were reviewed; however, they offered very limited or no probative post-separation evidence of any significant value, although it was noted that the CI had a follow-up evaluation for ankle pain in 2005 without further details.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5271 (limited motion of the ankle-moderate) for status post open reduction of the right ankle fracture and was rated as moderate limitation of motion.  The VA assigned a 20% rating using code 5299-5262 (Tibia and fibula malunion with moderate ankle disability) for a Weber B fracture status post ORIF.  The Board sought a route to a higher rating than the 10% assigned by the PEB for 5299-5262, but the absence of ankylosis did not afford a pathway to a higher rating, but by using code 5271 (marked limited motion) a 20% rating could be a consideration; however, the CI was stiff after immobilization and the only examination available for rating purposes was approximately 2 months prior to separation and approximately 1 month postoperatively where dorsiflexion was 50% of normal and plantar flexion was 67% of normal.  The VA’s assignment of a 20% rating using analogous code 5262 was reviewed and has credence in that there was moderate ankle disability, but the malunion, a Weber B fracture, was surgically repaired, although not fully healed in the one month post surgery.  Additionally, the CI was still on crutches at the time of the NARSUM examination and was expected to take up to a year before he would be able to resume duty.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right ankle fracture S/P ORIF 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 S/P ORIF right ankle fracture condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5271 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

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	
S/P Open Reduction of Right Ankle Fracture	5299-5271	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140528 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160005461, 

Dear 

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, 

Sincerely,

Enclosure