RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03826
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20080415

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Health Care Specialist Trainee, medically separated for “chronic right ankle and instability,” with a disability rating of 20%.

CI CONTENTION:  “I received a letter saying I cannot be rated lower than what I was discharged at, which was 20%.  However, the VA rated me at 10%.  I would like this changed, and I would like to be compensated for the 10% I was not given since my discharge.”  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 based upon a 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 - 20080320	VARD - 20091207	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Ankle and Instability	5299-5262	20%	Status Post, Right Ankle Reconstruction	5271	10%	20091130	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Right Ankle and Instability.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right ankle condition began in September 2006 after fracturing his right ankle playing high school football.  This required surgical repair with two subsequent operations.  The CI recovered and did well.  The CI declared the right ankle condition at accession and was cleared for accession without waiver after an evaluation by an orthopedic surgeon as part of the enlistment evaluation.  

The CI was able to complete basic training despite several sprains, but reinjured the ankle in combative training while in advanced individual training (AIT) and was no longer able to meet duty requirements.  Magnetic resonance imaging (MRI) studies showed repair of one ligament and a possible tear of another.  Despite treatment, the ankle condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “right ankle pain instability and decrease motion due to aggravation of reconstructive surgery, existed prior to service (EPTS)” for PEB adjudication.

The MEB NARSUM examination on 4 March 2008, 5 weeks prior to separation, noted complaints of pain and instability.  The physical examination showed global tenderness of the ligaments, swelling, instability, and reduced range of motion (ROM) of dorsiflexion a 5 degrees (normal 20) and plantar flexion of 35 degrees (normal 45).  The gait was abnormal due to pain.  

At the 30 November 2009 VA Compensation and Pension (C&P) evaluation, performed 20 months after separation, the CI reported that he could stand 3-8 hours with short breaks and there was no limitation to walking.  The gait was normal, instability was absent, and ROM was full and pain free. Tenderness and bony enlargement were present as was a lucent (prior radiographic (X-rays) had shown post-operative changes).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 20%, analogously coded 5262 (impairment of the tibia/fibula with moderate impairment of the ankle).  The VA rated the right ankle condition 10% coded 5271 (limitation in motion), based on the VA C&P examination 19 months after separation, citing tenderness, bony enlargement, and evidence consistent with painful motion.  The PEB adjudicated its 20% rating for moderate ankle impairment due to malunion of the fibula and tibia (5262) based on X-rays that showed good alignment without evidence of malunion; however, the Board agreed analogously rating under this code was a reasonable approach considering the nature of the original injury and its residuals.  There was not marked ankle disability or nonunion to support a higher rating under this code.  

The Board also considered whether a higher rating was supported under other diagnostic code options.  Because there was no ankylosis, nonunion or malunion, VASRD §4.71a offers no applicable joint code which would yield a rating higher than the 20% rating adjudicated by the PEB.  The Board also considered whether ratings under the VASRD code for other foot injuries (5284) provided for a higher rating (§4.7), however all Board members agreed that the severe level (30%) was not supported.  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 right ankle condition.  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 20140521, w/attachments
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 
AR20160017356 (PD201403826)

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