RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04294
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Trainee, medically separated for “chronic pain right ankle …” with a disability rating of 10%.  

CI CONTENTION:  “Please consider all conditions.”  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 - 20070110	VARD – 20090930*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Right Ankle … 	5099-5003	10%	Tibial Torsion	5262	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  No Rating*	
* On appeal the VA rated tibial torsion as 5299-5262 at 20%.  

ANALYSIS SUMMARY:  

Chronic Pain Right Ankle.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s condition began in May 2006 after twisting his right ankle during a road march.  A bone scan showed moderate to severe stress changes.  Evaluation by orthopedics concluded with a diagnosis of external tibial torsion, with “complex lower extremity issues that existed prior to his entrance in the military” and were service aggravated.  Surgical intervention was not discussed.  At the time of the physical therapy clinic appointment on 28 September 2006, the CI reported that his ankle still hurt and that his foot still turned out to the side.  The examiner noted that he was “now able to perform 10 basic squats with blank facial expression and no indication of pain with activity.”  On examination he had “grossly full active range-of-motion.”  There was no tenderness to palpation.  At the time of the orthopedic clinic appointment on 18 October 2006, the CI reported no improvement with physical therapy and that he still had pain in the lateral right ankle and medial foot.  On examination he was noted to have 15 degrees of external tibial torsion, positive tenderness to palpation of the posterior tibial tendon, flat feet with a positive “too many toes sign,” and a supple subtalar joint.  Despite treatment, the right ankle condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for a MEB.  The MEB forwarded “external tibial torsion of the right lower extremity with result in chronic right ankle pain” for PEB adjudication.  

At the MEB examination (recorded on DD Form 2807 and 2808) dated 6 December 2006, 2 months prior to separation, physical exam showed tenderness to the anterior aspect of the right talus, with no effusion or edema.  The MEB NARSUM, dated 8 December 2006, 2 months prior to separation, noted that the CI was unable to run or pass his physical fitness test.  The physical exam noted no effusion, edema, or atrophy.  His gait was normal, but he had “tenderness to palpation of the anterior aspect of the right ankle overlying the talus” and “16 degrees of external tibial torsion.”  The NARSUM did not address the range-of-motion of the ankle.  Of note, the entry physical dated 25 January 2006 documented normal arches that were asymptomatic and had no indication on history or exam of any ankle or foot abnormalities.  

There was no VA Compensation and Pension (C&P) examination performed proximate to the CI’s separation.  The VARD most proximate to separation (dated 30 September 2009) indicated that Service treatment records were used by the VA for their original rating decisions.  On appeal, a treatment note from July 2010 was referenced that indicated the CI was taking narcotic pain medication, with exam findings of full ROM and no instability.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, coded 5099-5003 (analogous to degenerative arthritis), citing slight and frequent pain IAW the US Army Physical Disability Agency’s Pain Policy.  The VA did not originally rate the CI’s right ankle, citing that there was no current medical evidence (no exam) to indicate a permanent residual or chronic condition and the condition was therefore “Not Service Connected.”  On appeal (VARD dated 23 September 2010), the VA rated the condition 20%, coded 5299-5262 (analogous to malunion of the tibia and fibula with moderate ankle disability) effective the date of the CI’s initial claim, citing the July 2010 treatment note.  

There was no evidence of marked limitation of motion in dorsiflexion or plantar flexion that would support a 20% rating under the VASRD diagnostic code for limitation of motion (5271).  There was no ankylosis for rating under VASRD code 5270.  The Board considered if the CI’s tibial torsion was sufficiently analogous to a malunion of the tibia (as rated by the VA under code 5262) and if that coding would provide a higher rating (§4.7).  Given the CI’s degree of tibial torsion and functional disability, all Board members agreed that the impairment more nearly approximate moderate ankle disability to support a higher 20% rating analogous to 5262.  The condition did not more nearly approximate a severe foot injury for higher rating under the VASRD code for other foot injuries (5284).  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, coded 5299-5262.  

BOARD FINDINGS:  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Pain Right Ankle, Due to Congenital External Tibial Torsion	5299-5262	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140519, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160006104, 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 Iaccept 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, XXXXXXXXXXXXXXXXXXX.

Sincerely,

 		
XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army

Enclosure