RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03021
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040418

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Cannon Crewmember, medically separated for “chronic pain, right foot and ankle,” with a disability rating of 10%.

CI CONTENTION:  The CI contends he is currently receiving a higher disability rating from VA for all of his conditions and that he can no longer work due to his ankle disability.  The CI’s 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 Physical Evaluation Board (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 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 PEB - 20040209	VARD - 20061127	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Foot and Ankle	5099-5003	10%	Fracture/Surgical Residuals, Right Ankle	5299-5271	10%	STR	
Compartment Syndrome Right Thigh	Not Unfitting	Surgical Residuals, Right Thigh Compartment Syndrome	5399-5313	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Pain, Right Foot and Ankle.  According to the service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered multiple severe right lower extremity injuries from a motorcycle crash on 25 December 2002.  These included a fractured talus (main weight-bearing bone of the ankle) which required an open reduction and internal fixation (ORIF) on the date of injury, and severe foot injuries (Lisfranc fracture dislocation, comminuted cuneiform and cuboid fractures, tarsal/metatarsal disarticulations) requiring an ORIF procedure 2 months later, followed by hardware removal 3 months after that (12 months prior to separation).  There were also severe medical complications (rhabdomyolysis, acute renal failure, deep venous thrombosis, disseminated intravascular coagulation) resulting in medical care at several facilities.  Available STR entries reflected a protracted rehabilitation with progressive weight bearing, and an entry of 6 August 2003 (after the NARSUM) indicated that the CI still needed a cam walker (removable rigid brace similar to a ski boot).  This was 8 months prior to separation and there was no subsequent evidence probative to ambulatory status.  There was a single set of measurements of ankle range of motion (ROM) in evidence (an orthopedic entry of 5 June 2003) which recorded dorsiflexion to 10 degrees (normal 20) and plantar flexion to 35 degrees (normal 45).  Despite treatment, the “chronic pain, right foot and ankle” condition could not be adequately rehabilitated to meet the physical requirements of the CI’s specialty and the CI was referred for an MEB.  The MEB forwarded “avascular necrosis right talus” and “right Lis franc dislocation” for PEB adjudication.  

The MEB NARSUM examination on 24 June 2003 (10 months prior to separation) and an addendum dated 8 January 2004 (3 months prior to separation), documented pain severity rated “moderate and frequent” with a 1 hour walking tolerance and prohibition of marching, running, jumping, and standing formation for over 20 minutes.  The physical examination recorded only well healed surgical scars and the ROM measurements from above (by the NARSUM examiner).  There was no information regarding gait (it is clear that at least a cam walker was still required) or any detailed physical findings.  The CI failed to report for a scheduled VA examination, and there was no temporally probative post-separation evidence.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the “chronic pain, right foot and ankle” condition 10% using an analogous 5003 code (arthritis, degenerative), citing the U. S. Army Physical Disability Agency (USAPDA) pain policy.  The VA also rated the condition 10% using an analogous 5271 code (limited motion of the ankle), citing “moderate” limitation.  Members agreed that under criteria of VASRD §4.71a, a rating higher than 10% was not justified under codes 5003 or 5271; but, considered alternative rating under codes 5283 (tarsal, or metatarsal bones, malunion of, or nonunion of) or 5284 (foot injuries, other).  Both of these codes offer ratings based on the assessment of overall disability and provide an identical scale: 10% for “moderate,” 20% for “moderately severe,” and 30% for “severe” disability.  Members agreed that, in light of the evidence for fairly significant functional disability still present at separation, alternative rating under one of these codes was supported IAW VASRD §4.7 (higher of two evaluations); and, decided that code 5284 best reflected the multiplicity of injuries in this case.  Having agreed that rating under 5299-5284 was appropriate and that the 10% rating for moderate disability was exceeded, members deliberated whether the 20% (moderately severe) or 30% (severe) rating was best supported by the functional impairment in evidence.  Although the injuries (and complications) in this case were severe, the clinical course was stable and improving at the time of separation.  It was unclear whether the CI still required an assistive device (cam walker, other brace, or a cane) at separation, but the 1 hour walking tolerance documented in the NARSUM suggested that he was mobile and capable of routine activities; an impression corroborated by the functional status reflected in the commander’s statement.  Members thus agreed that the disability in evidence could not be reasonably characterized as severe.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the right foot/ankle condition under code 5299-5284.  

Compartment Syndrome, Right Thigh.  The Board’s main charge is to assess the fairness of the PEB’s determination that right thigh compartment syndrome was not unfitting.  Neither the profile nor the MEB assessment with regard to retention standards are definite indicators that a condition is unfitting.  The established principle for PEB fitness determinations is that they are performance based.  Although the DD Form 2808 evidence suggested the possibility of thigh weakness and atrophy, it was impossible to discern if this was referring solely to the lower leg as a complication of the ankle and foot injuries; thus, no direct functional correlation with the thigh injury was possible.  The functional limitations in evidence from the NARSUM, the profile and the commander were for the lower extremity without regard to the different injuries; and, any attempt to correlate this with the thigh condition alone would be excessively speculative.  Furthermore, any separate disability from the thigh (linked to fitness) would have been subsumed in the rating for the unfitting condition which was based on an assessment of those same functional limitations.  With these issues in mind, members agreed that there was not enough performance based evidence in this case to conclude that the thigh impairment alone would have precluded satisfactory duty performance.   

After due deliberation, and 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 right thigh compartment syndrome and so no additional disability rating is recommended.   

BOARD FINDINGS:  In the matter of the right ankle and foot condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5284, IAW VASRD §4.71a.  In the matter of the contended right thigh compartment syndrome, 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.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Pain, Right Foot and Ankle	5299-5284	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140619, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 AR20160011101 (PD201403021)

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