RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02558
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090507

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “posttraumatic arthritis of the right ankle” with a disability rating of 20%.  

CI CONTENTION:  “Review all conditions.”  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 at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  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 - 20090107	VARD - 20090814	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posttraumatic Arthritis of the Right Ankle 	5271	20%	Residuals of right Lower Leg Fracture, Including Arthritis	5010-5262	30%	20090226	
			Painful Scars, (Right Leg)	7804	10%	20090226	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Posttraumatic Arthritis of the Right Ankle.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right ankle condition began in March 2007 after sustaining and injury by an improvised explosive device (IED) while serving a combat tour in Iraq.  The shrapnel penetrated his right leg and fractured his right distal tibia and fibula.  He was treated with multiple surgeries including fasciotomies (4-compartment) and open reduction and internal fixation (ORIF).  September 2008 radiographic (X-ray) studies showed retained hardware and bony fusion of the distal tibia and fibula.  Further treatment did not result in improvement sufficient to allow unrestricted duty.  

The 5 September 2008 MEB NARSUM examination, performed 8 months before separation, noted that the CI walked with a mild gait abnormality because of his inability to dorsiflex his right foot.  He was not using a brace or any assistive device for ambulation.  Examination showed two fasciotomy scars and an anterior right ankle scar 5 cm x 5 cm in diameter.  The scars were superficial but mildly tender to palpation.  The right ankle had no edema or effusion.  There was no redness, bruising, warmth, guarding, or atrophy.  There was tenderness to palpation over the medial and lateral ankle.  Anterior and posterior drawer signs were negative for laxity and there was no locking or ankylosis.  The right ankle range of motion (ROM) from 6 August 2008 was 2 degrees of dorsiflexion (normal 20) and 9 degrees of plantar flexion (normal 45).  The ROM from the day of the NARSUM was 0 degrees of dorsiflexion and 30 degrees of plantar flexion.  There was slight decreased strength of ankle dorsiflexion and plantar flexion.  The physician indicated that “there is functional weakness and lack of endurance for running and jumping, which he does not do because of pain.  He is unable to toe walk on his right foot and is unable to heel walk on his right foot because of pain.  He is able to walk, however, with a nearly normal gait when he uses both feet.”  The 3 September 2008 MEB consultation provided similar ROM results and also noted that the 4x5cm ankle scar showed some tethering of underlying tendinous structures on ROM.  

The 6 January 2009 MEB NARSUM addendum, 4 months before separation, was in response to the PEB question if the CI’s scars met or failed retention standards.  The CI scars were reported as stable with no sloughing of scar tissue since the 2007 skin graft.  Examination measured the five right leg scars and noted that two scars were tender, and that ankle and knee motion were not affected by the scars.  The conclusion indicated that the CI’s scars met retention standards.  

At the 26 February 2009 VA Compensation and Pension (C&P) examination, performed 2 months before separation, the CI reported pain with ankle movement and an inability to walk more than 30 minutes without increased ankle pain.  He reported constant pain in the anterior right ankle.  He reported his pain as aching and sharp rated as 8/10.  The CI reported that the pain was elicited by physical activity and alleviated by rest.  He also reported weakness, stiffness, swelling, and lack of endurance.  X rays showed degenerative changes of the right ankle, retained hardware, and deformity of the right tibia and fibula.  Physical examination showed no heat, redness, giving way, locking, fatigability or dislocation of the right ankle.  His posture was normal and he walked with a right leg limp with minimal right ankle motion, and the tandem gait was normal.  There were two tender scars of the right lower leg with a normal examination of the right tibia and fibula.  The right ankle was tender.  Right ankle ROM was painful with dorsiflexion of 0 degrees (normal 20) and plantar flexion 20 degrees (normal 45).  With repetition, the right ankle joint was further limited by pain and weakness but not by lack of endurance, fatigue or incoordination.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 20%, coded 5271 (limited motion of the ankle), citing limitation of motion.  The VA rated the right ankle condition 30%, using a dual code 5010-5262 (traumatic arthritis-impairment of tibia and fibula), stating that the evaluation takes into account the effect the tibia and fibula have on his right ankle.  The rating cited malunion of the tibia and fibula and marked ankle disability.  

The panel noted that the PEB assigned the maximum rating (20%) available under the diagnostic code 5271, and considered whether an alternate rating was supported under other diagnostic code options.  There was no separately unfitting scar condition in the MEB or PEB, and any impact from the scars was considered in rating the unfitting ankle condition.  

The panel noted the underlying cause for the ankle impairment was residuals of a shrapnel injury with fracture of the tibia/fibula and considered rating analogous to the VASRD diagnostic code 5262 (impairment of the tibia, fibula and ankle).  Diagnostic imaging documented osseous fusion of the distal fibula and tibia which is equivalent to a malunion.  The panel deliberated if the CI’s ankle condition was closest to the “moderate” (20%) or “marked” (30%) disability level at separation.  Given the marked limitation of ankle ROM, the arthritic ankle changes with tibia/fibular fusion, pain and weakness on ankle ROM repetition and an antalgic gait, the panel adjudged that the CI’s right ankle disability picture was closest to the marked (30%) disability picture at separation.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the posttraumatic arthritis of the right ankle condition, coded 5010-5262.  

BOARD FINDINGS:  In the matter of the posttraumatic arthritis of the right ankle condition, the panel unanimously recommends a disability rating of 30%, coded 5010-5262 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration.  The panel recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Posttraumatic Arthritis of the Right Ankle	5010-5262	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151121, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013321, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure