RECORD OF PROCEEDINGS
PHYSICAL DISABILITY PANEL OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00181
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081114

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 “right ankle pain” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that he should have been rated for complex regional pain syndrome instead of for a broken ankle.  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 - 20080904	VARD - 20100521 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Pain	5099-5003	10%	Chronic Pain Syndrome…Fracture Right Ankle Tibia and Fibula	8524	40%	20100104	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Right Ankle Pain Diagnosis.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent an open reduction and internal fixation of the right lateral and medial malleolus in May 2007.  Although the surgical site healed, the right ankle pain persisted and became constant and chronic.  In October 2007, the CI underwent a second surgery to remove the hardware which significantly improved the pain.  However, severe pain continued at the medial aspect of the right ankle radiating out to the dorsum of the right foot—the CI had been diagnosed with and treated for chronic pain syndrome.  No further surgery was recommended.  

At the 3 July 2008 VA Compensation and Pension (C&P) evaluation, 4 months prior to separation, the CI reported continued right ankle pain and decreased range of motion (ROM).  Precipitating factors included exercise, prolonged standing prolonged sitting, and walking.  Flare ups occurred four times daily with pain intensity rated at 8/10.  Right ankle X-rays showed no acute fracture or re-fracture (appeared healed), minimal soft tissue swelling, and slight osteopenia.  Physical examination showed the CI was able to walk without a cane, however grimacing and guarding of the right leg was noted with notable limp present.  Heel/toe walking was normal.  Muscle strength was decreased to 4/5 (normal 5/5).  Surgical scar was present with an otherwise normal appearing ankle with no tenderness.  The right ankle ROM was dorsiflexion of 10 degrees (normal 20) and plantar flexion of 55 degrees (normal 45).  There was no additional limitation from pain, fatigue, weakness or lack of endurance following repetition.  The diagnosis was “nonunion fracture of the distal fibula with chronic pain syndrome with surgical scar.”  

The 24 July 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of constant 7-8/10 pain.  The CI reported difficulty walking and requiring the use of a cane.  The CI also reported intermittent swelling.  CI was unable to ruck-march or participate in field exercise, and had to wear soft shoes.  Physical examination showed an antalgic gait and tenderness to palpation at the scar over the right medial malleolus.  The right ankle ROM was with severe pain and measured as dorsiflexion of 10 degrees (normal 20) and plantar flexion of 25 degrees (normal 45).  The physician noted that the right ankle pain “markedly impairs his ability to ambulate.”  

At the 12 September 2008 Spine and Joint Rehabilitation appointment on 12 September 2008, 2 months prior to separation, the CI reported that his pain was well controlled and isolated to the right ankle/leg and non-radiating.  Physical examination showed diffuse ankle tenderness, sensation was normal to touch and pinprick, ankle jerk reflex 2+ (normal), left and right toes down going (normal), no muscle atrophy, normal coordination and cerebellar function, and muscle strength 5/5 (normal).  Gait showed a right leg limp.  The examiner recommended continued use of narcotic medications as the “only class of medications which has a reasonable chance of relieving some of his pain.”  

At the 4 January 2010 VA C&P evaluation, 14 months after separation, the CI reported he continued to have problems with the right lower leg with pain and swelling.  Sensitivity to cold existed, with pain from the toes to the knee with numbness in the right foot reported.  Pressure to the medial scar caused pain flare-ups.  The CI reported right foot drop with dragging his toes to ambulate.  Physical examination showed the CI used a cane, dragged his right toes with ambulation and was not able to dorsiflex his foot during ambulation, walk on his heels, toes, or do tandem walking.  The examiner could not elicit the right Achilles tendon reflex.  No redness, warmth or effusion in the right foot was noted, but the right ankle was larger than the left ankle.  Tenderness to palpation was noted in all aspects of the right foot.  The CI had difficulty wiggling his toes and was only able to perform a very slight dorsiflex and plantar flex of the toes.  The Achilles tendon was slightly out of alignment with the heel everting laterally.  No unusual corns or calluses were noted.  The CI had an orthotic device for the right foot drop.  The ROM was recorded as -30 degrees of dorsiflexion to 30 degrees of plantar flexion (no motion) and the CI was not able to perform repetitive ROM due to lack of mobility of the right ankle.  The diagnoses were “trimalleolar, fibula/tibular ankle fracture with surgical repair and scars; and complex regional pain syndrome of the right lower extremity and right foot drop.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, coded 5099-5003 (analogous to arthritis, degenerative) citing limited ability to bear weight on the right ankle with dorsiflexion at 10 degrees and plantar flexion at 25 degrees.  The VA rated the right ankle condition 40%, coded 8524 (paralysis of internal popliteal nerve), based on the C&P examination 14 months after separation, citing foot drop due to fractured right ankle, tibia and fibula.  
The panel deliberated on the probative value of the disparate examinations in evidence, and adjudged that the C&P examination 14 months remote from separation was post-separation worsening and not indicative of the CI’s disability picture at the time of separation.  The Service examinations and pre-separation C&P examination documented pain-limited right ankle motion with pain and functional loss including an abnormal gait.  

However, the panel noted the underlying cause for the ankle impairment was pain in the ankle and the CI had a diagnosis of chronic pain syndrome prior to separation.  The right ankle condition was therefore analogous to a neuritis of the anterior tibial nerve (deep peroneal) nerve [8623] or internal popliteal nerve (tibial) [8624] with evidence prior to separation unclear as to which nerve.  Therefore the panel elected to use code 8524 as the predominate code (more functions, higher rating IAW VASRD §4.7, and subsequent post-separation findings) for clarification.  The panel noted that the Spine and Joint Rehabilitation examination, 2 months prior to separation, showed no right ankle weakness/paralysis, or organic changes, or sensory or reflex deficits; therefore rating analogously to a neuritis would be no greater than moderate IAW VASRD §4.123.  The moderate rating under 8624 (neuritis of the internal popliteal nerve [tibial]) is 20%, and the panel adjudged that the CI’s disability picture most nearly approximated that rating level.  There was no ankylosis of the ankle or other VASRD-compliant coding for any rating higher than 20%.  The panel also considered analogous rating using the VASRD diagnostic code 5262 (impairment of the tibia, fibula and ankle), however there was not a marked ankle disability at separation for any rating higher than 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the right ankle condition, coded 8699-8624.  

BOARD FINDINGS:  In the matter of the right ankle condition, the panel unanimously recommends a disability rating of 20%, coded 8699-8624 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Ankle Pain	8699-8624	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, Received 20160404, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170014101, 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,	
Enclosure