RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00863
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090317

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E1, Basic Trainee, medically separated for “degenerative osteoarthritis right ankle and subacute distal tibial fracture,” with a disability rating of 10%.  

CI CONTENTION:  “Arthritis has gotten worse.”  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 - 20090217	VARD – 20091029	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Osteoarthritis Right Ankle and Subacute Distal Tibial Fracture	5003	10%	Right Ankle Osteoarthritis	5003	NSC	20090612	
			Residuals, Right Ankle Fracture and Bone Chip Removal	5299-5271	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Degenerative Osteoarthritis Right Ankle.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right ankle condition was exacerbated while running an obstacle course in December 2008 (the CI had previous right ankle surgery for fracture with subsequent disability separation during a period of prior enlistment, for which he had received an entry waiver).  Radiographic studies performed in December 2008 showed a possible healing fracture of the right distal tibia.  There was no surgical indication and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “right ankle osteoarthritis” and “sub-acute distal tibial fracture” (the tibia is one of the lower leg bones) for PEB adjudication.  

The MEB NARSUM on 16 January 2009, 2 months prior to separation, noted complaints of intermittent right ankle pain brought on with activity such as standing for more than 30 minutes or going up stairs.  Walking did not bother the ankle initially, but walking beyond an unspecified point did bring on pain.  Physical examination noted tenderness around the joint with normal gait and neurologic examination.  Range of motion (ROM) was reported as dorsiflexion at 10 degrees after repetition (normal 20) and plantar flexion 30 degrees (normal 45) after repetition.  

At the 12 September 2009 VA Compensation and Pension (C&P) examination, performed 3 months after separation, the CI reported almost constant ankle pain with flare-ups that almost made it impossible to bear weight, which were brought on by sitting for extended periods, first waking up, or walking barefoot.  Physical examination showed normal gait, posture, and neurologic examination.  ROM was reported, following repetition, as dorsiflexion of 6 degrees with pain, and plantar flexion of 20 degrees with pain.  There was no instability, weakness, or tenderness on examination.  The VA record showed that the CI failed to report for a follow-up examination to provide a medical opinion regarding permanent aggravation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, coded 5003 (degenerative arthritis), citing limitation of motion.  The VA used the 5003 code, and also the analogous 5271 code (limited ankle motion), but indicated that the ankle condition was not service connected, citing a lack of evidence to support service-connection.  

The Board considered alternative rating under the diagnostic code 5271, and deliberated if the limitation of motion was “moderate” (10%) or “marked” (20%).  All Board members agreed the limitation of motion was no more than moderate, therefore supporting no higher than the 10% rating adjudicated by the PEB.  A higher rating of 20% was not indicated in the absence of marked limited of ROM of the ankle.  The Board noted the underlying cause for the ankle impairment was residuals of a fracture of the tibia and also considered rating using the VASRD diagnostic code 5262 (impairment of the tibia, fibula and ankle); however, there was no malunion or nonunion to assign a rating.  The Board also considered other alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to rating.  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 degenerative osteoarthritis right ankle.  

BOARD FINDINGS:  In the matter of the degenerative osteoarthritis right ankle and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.  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 20150601, w/attachments
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 XXXXXXXXXXXXXXXXXXXX, AR20160014796 (PD201500863)

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