RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-03428
BRANCH OF SERVICE:  Army	BOARD DATE:  20150522
SEPARATION DATE:  20090629

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 bilateral ankle pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) nor satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The bilateral ankle pain condition characterized as “chronic right ankle pain status post trimalleolar fracture with dislocation of ankle requiring open reduction and internal fixation” and “chronic left ankle pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Additionally, “chronic bilateral eczema of the feet” was also forwarded for adjudication.  The Informal PEB adjudicated “bilateral ankle pain,” as unfitting, rated 10% each for a combined 20% rating, with citied application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining eczema condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please review 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 20090323	VA* - (~1 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Pain	5099-5003	20%**	Residuals of Right Ankle Fracture with Traumatic Arthritis	5271	20%	20090803	
			Left Ankle Strain	5271	10%	20090803	
Chronic Bilateral Eczema of the Feet	Not Unfitting	Eczematous Dermatitis of Both Feet	7806	0%	20090803	
Other x 0 (Not In Scope)	Other x 0	
COMBINED RATING:  20%	COMBINED RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20090904 (most proximate to date of separation [DOS]).  **PEB rated each ankle separately at 10% for a combined 20% rating.

ANALYSIS SUMMARY:

Bilateral Ankle Pain Condition.  Although the PEB titled the condition as “bilateral ankle pain,” on the DD Form 199 revealed that the 20% rating was actually the combined separate ratings of 10% for each ankle to include the bilateral factor.  The historical parameters of each ankle are presented separately below.

Right Ankle Condition.  On 15 June 2006, the CI severely fractured and dislocated his right ankle while playing basketball.  He underwent surgical reconstruction as well as aggressive physical therapy (PT).  Post-operatively he did very well, but over time residual pain kept him from performing his MOS duties.  On 6 November 2008 (7 months prior to separation), the CI endorsed constant 5/10 and up to 9/10 pain with running, standing or walking for long periods of time, or with weight-bearing activities.  He was permanently profiled in February 2009 and referred to an MEB.  At the MEB narrative summary (NARSUM) examination on 2 March 2009 (4 months prior to separation), the CI’s chief complaint was “My ankles hurt.”  His physical examination (PE) revealed decreased and painful right ankle motion with surrounding tenderness.  The examiner opined that the CI’s condition was stable at a level as to not allow him to fulfil his military duties and that his prognosis was “fair to good.”  At the VA Compensation and Pension examination on 3 August 2009 (just over a month after separation), the CI reported daily right ankle pain with flare-ups two to three times per week lasting for several hours.  His PE revealed right ankle swelling and decreased painful motion.  His diagnosis remained right ankle fracture with surgical correction and traumatic arthritis.  The goniometric range-of-motion (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.

Ankle ROM
(Degrees)	MEB ~3 Mo. Pre-Sep	VA C&P ~1 Mo. Post-Sep	
	Left	Right	Left	Right	
Dorsiflexion (20 Normal)	20	12	20	10	
Plantar Flexion (45)	40	28	30	20	
Comment	tenderness	painful motion 	painful motion	painful motion	
§4.71a Rating	10%	10%-20%	10%	10%-20%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the service and the VA utilized different primary coding options of 5003 (degenerative arthritis) and 5271 (ankle; limited motion) with the sole rating of 10% for each ankle respectively.  Board members acknowledged the significant limitation of motion about the right ankle and deliberated over the degree of impairment as either “moderate” at 10% or “marked” at 20% under code 5271.  Members deliberated extensively and agreed that the evidence of approximately 50% loss of ankle motion coupled with persistent pain would properly be defined as “marked” in support of a 20% rating.  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 condition.

Left Ankle Condition.  Other than MEB and disability summary records, there were only three encounter documents in the case file pertaining to the left foot; an emergency room record dated 2 March 2008 for left ankle/foot pain and swelling, a follow-up clinic visit on 3 March 2008, and an X-ray report indicating a “normal” left ankle dated 20 January 2009.  There was no history of trauma to the left ankle or foot.  At both the NARSUM and VA examinations, the cause of the left ankle pain was noted to most likely be secondary to increased weight bearing in compensating for the primary right ankle injury.  Both examinations revealed minimal limitation of motion and either tenderness and or painful motion all in support of a maximum rating of 10% impairment IAW VASRD §4.59 (painful motion) or §4.40 (functional loss) as indicated by tenderness.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left ankle condition.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the chronic bilateral eczema of the feet 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.  The eczema condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The condition was reviewed and considered by the Board.  There was no performance-based evidence from the record that this condition significantly interfered with 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 bilateral eczema of the feet and so no additional disability rating is 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.  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, the Board unanimously recommends a disability rating of 20%, coded 5271 IAW VASRD §4.71a.  In the matter of the left ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended chronic bilateral eczema of the feet, 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 and that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Right Ankle Fracture 	5271	20%	
Left Ankle Pain	5271	10%	
COMBINED (w/BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140425, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President	
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150015742 (PD201403428)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

Encl						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA