RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02505
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090709

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, medically separated for “right ankle pain” with a disability rating of 10%.

CI CONTENTION:  “PTSD and TBI should have been factored during PEB and rated as unfitting.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20090204	VARD - 20090724	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Pain	5099-5003	10%	Residuals Surgical Repair of Ligament, Right Ankle	5271	10%	20081024	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Right Ankle Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent right ankle Brostrom and arthroscopy surgery on 25 April 2008.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  At the 26 August 2008 Warrior Care clinic appointment, 10 months prior to separation, the CI reported right ankle pain rated 3/10.  Physical examination showed normal strength, normal reflexes, and a normal gait.  There was tenderness to palpation, painful motion, no muscle spasms, no instability, and ankle motion was normal.  

At the 24 October 2008 VA Compensation and Pension (C&P) Pre-Discharge examination, performed 8 months before separation, the CI reported symptoms of pain, swelling, tingling and numbness.  Precipitating or aggravating factors were exercise, walking, bending, and climbing stairs.  Flare ups caused 3/10 pain, only when aggravating factors were present, and there was no additional limitations noted.  Physical examination showed a normal gait and stance and normal strength.  There was no right ankle range of motion (ROM) recorded.  

The 25 November 2008 MEB NARSUM, 7 months prior to separation, the CI reported that since his surgery his right ankle was better and he no longer had sharp shooting pains but he still had a constant dull ache of 2-3/10 at rest which increases to 5/10 with increased activity.  The MEB physical examination noted normal strength, coordination, balance, gait and stance.  The right ankle had painful motion, there was no muscle spasm or instability noted.  There was no tenderness observed on ambulation and no weakness of the ankles was noted.  At the 16 January 2009 Physical Therapy appointment for MEB ROM measurements, the examiner noted that there was no pain on motion but pain was noted upon weight bearing.  ROM measurements showed a dorsiflexion of 10 degrees (normal 20) and a plantar flexion of 60 degrees (normal 45), the right and left ankles showed identical ROM measurements.  There was no muscle spasm, muscle atrophy, or swelling.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, analogously coded 5003 (arthritis, degenerative), citing limitation of motion.  The VA rated the right ankle condition 10%, coded 5271 (limited motion of the ankle), citing reduced dorsiflexion and pain upon weight bearing.  The panel concurred that a 10% rating for functional loss (§4.40, §4.45, §4.59) due to pain was appropriate as adjudicated by the PEB.  The panel considered alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to rating.  The panel considered if the limitation of motion was moderate or marked when considered under 5271, limitation of ankle motion.  The panel agreed that the ROM examinations proximate to separation detailed above were consistent with a moderate limitation of motion for the 10% rating under this code; however, the 5271 code was not advantageous to the CI’s rating of 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right ankle condition.  

Contended PEB Condition: Depression.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended depression was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended depression condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the right ankle pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended depression condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  The panel, 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 20151022, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013271, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
						      					
Enclosure