RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03962
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060616

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty,E-4, Cannon Crewmember, medically separated by the Formal PEB (FPEB) for a right ankle fracture, rated 10% disability rating.

CI CONTENTION:  The CI asserts that he has been rated by the Veterans Administration for other conditions not taken into consideration by the PEB.  Additionally he contends he has had a surgical implant and continues to take pain medications for his ankle injury.  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/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:  

SERVICE PEB - 20060410	VARD - 20070613	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bimalleolar Fracture Right Ankle …  ORIF	5271	10%	Fracture, Right Ankle, Postoperative ORIF	5271	10%	20070328	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:

Bimalleolar Fracture Right Ankle which required ORIF.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s right ankle condition began in May 2005 after a howitzer fell onto his right leg fracturing both of the lower leg bones (tibia and fibula) which make up the right ankle (bimalleolar).  The CI underwent right ankle ORIF surgery in May 2005 (13 months prior to separation).  Despite treatment, the CI’s ankle condition could not be adequately rehabilitated to meet the physical requirements of his military specialty and he was referred for a Medical Evaluation Board (MEB).

At the MEB exam, dated 24 January 2006, 5 months prior to separation, the CI reported daily swelling and pain in his ankle.  The MEB physical exam noted ankle tenderness, well healed scars, and limited motion with pain.  The NARSUM cited a formal physical therapy (PT) goniometric range-of-motion (ROM) evaluation documenting dorsiflexion to 0 degrees (normal 20) and plantar flexion of 50 degrees (normal 45).  The orthopedic NARSUM addendum dated 26 January 2006 documented an exam with dorsiflexion “severely limited” with “dorsiflexion to neutral on the right as opposed to about 20 degrees on the left asymptomatic side.”  Plantar flexion lacked 5 degrees compared to the opposite side.  Radiographs documented arthritic changes with stable hardware position and well healed fractures.

At the VA Compensation and Pension (C&P) exam performed on 28 March 2007, approximately 10 months after separation, the CI reported a similar history with daily pain with weakness, stiffness, swelling, instability, fatigability and lack of endurance.  He used a cane with intermittent use of an ankle brace due to pressure symptoms.  An exam documented an antalgic gait with an inability to squat.  ROM was painful with dorsiflexion 2 degrees (normal 20) and plantar flexion 30 degrees (normal 45).  Remote VA records (greater than 3 years past separation) indicated that painful scars on the right ankle, a right tibial neuropathy, and worsened ROM limitations which led to additional VA ratings.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, coded 5271 (limited motion of the ankle), citing limitation of passive ROM (likely application of AR 635-40) and use of a cane as moderate limited motion.  The VA also rated the right ankle condition 10%, coded 5271, citing moderate limitation of motion.

The Board adjudged that the service exams had the highest probative value for rating at separation.  The VA exam documented slight post-separation improvement.  The Board deliberated the severity of ankle limitation of motion under code 5271 between “marked” (20%) versus “moderate” (10%); as well as potential alternative coding analogous to 5262 (tibia and fibula impairment) with moderate (20%) versus "slight" (10%) ankle disability.  Given the lack of any active dorsiflexion on the PT and orthopedic exams, the Board adjudged that the CI more closely approximated the disability picture for the 20% criteria of moderate ankle disability analogously to 5262.  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.

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.  As discussed above, PEB reliance on AR 635-40 for rating the right ankle condition was likely operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the right ankle condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5262, 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	
Bimalleolar Fracture Right Ankle which required ORIF	5299-5262	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140908, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160005146, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

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.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army

Enclosure