RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01999
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Cannon Crewmember, medically separated for “loss of motion, left ankle” with a disability rating of 20%.   

CI CONTENTION:  “Issues with my ankle and my back.  More pain and issues as life goes on.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20080620	VARD - 20090324	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Loss of motion, Left Ankle…	5271	20%	S/P Left Ankle Fracture, Fusion…	5299-5271	10%	20080421	
Low Back Pain	Not Unfitting	Chronic Lumbosacral Strain	5299-5237	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Left Ankle.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered a left ankle fracture in 2005 that required surgical reduction, followed by a surgical fusion (tibiotalar arthrodesis) in August 2007.  Post-operative STR entries documented an uncomplicated recovery, but the condition could not be sufficiently rehabilitated for continued military service.  There were no STR clinical notes specifically probative to range of motion (ROM), and none that documented malalignment, instability, or other VASRD-ratable criteria.  
The 14 February 2008 MEB NARSUM examination, 7 months prior to separation, documented persistent pain without elaborating functional limitations specific to the ankle.  The physical examination recorded “a slight limp favoring the left ankle,” the absence of atrophy, well-healed surgical scars, and some localized sensory impairment of the dorsal foot.  There was no mention of ROM or other joint findings.  Formal ROM measurements for the MEB were conducted by physical therapy (PT) on 11 April 2008, 5 months prior to separation.   The PT examiner recorded dorsiflexion (DF) of minus 10 degrees from neutral (normal plus 20) and plantar flexion (PF) to 20 degrees (normal 45).  

The 21 April VA Compensation and Pension (C&P) examination (10 days after the PT ROM evaluation) documented “day-to-day” pain rated 4/10 with subjective weakness and instability, although the CI was no longer using a brace or any assistive device.  Documented functional limitations were “excessive” walking, negotiating uneven ground, inability to run, and “any strenuous work.”  The physical examination recorded an antalgic gait, slight swelling without note of tenderness, normal alignment, and ankle strength “decreased by 30%.”  Measured ROM was DF of minus 17 degrees and PF to 54 degrees, with pain at the extremes.  

A 15 May addendum to the NARSUM, 3 months before separation, documented a recent accident with a re-fracture of the left ankle that was well-aligned and treated in a cast, with an expectation of a full recovery.  There was no probative STR or post-separation evidence that permitted the panel to assess any impact of this development on ratable severity at separation.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left ankle 20%, coded 5271 (limitation of motion), citing “moderate” limitation.  The panel noted, however, that the “moderate” criterion of 5271 provides a rating of 10%.  The maximum 20% rating is for “marked” limitation.  The VA rated the condition 10%, analogously coded as 5271, based on the C&P examination, citing the applicable “moderate” criterion.  

As noted, the PEB assigned the maximum rating for limitation of motion.  The panel considered rating under code 5284 (foot injuries, other) that confers a 30% rating for “severe” disability, but members agreed that the functional impairment in evidence was better aligned with the “moderately severe” 20% criterion of that code.  Similarly, it was agreed that a 30% rating for “marked” disability was not supported via analogous rating for contiguous ankle disability under code 5299-5262 (tibia and fibula, impairment).  No criterion was supported by the evidence that would justify a rating higher than 20% under any other applicable code available in VASRD §4.71a.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the left ankle condition.  

Contended PEB Condition: Low Back Pain.  The CI experienced an onset of back pain after a fall in August 2005, 3 years before separation.  He discontinued care after one session of PT, and there was no STR evidence for any related clinical activity or complaints until MEB proceedings, and no evidence for any reinjury or other exacerbation.  The NARSUM documented persistent back pain “aggravated by strenuous work” and moderate ROM limitations; although, PT thoracolumbar ROM measurements (2 months later as above) were recorded as normal in all planes without painful motion.  Only the ankle was profiled until the 16 May 2008 permanent profile after initiation of the MEB, at which time low back pain was added, and the latter was forwarded by the MEB as failing retention standards.  The commander’s 12 June 2008 performance statement referenced only the ankle condition.  The PEB’s decision that the back condition was not unfitting cited the fact that the CI had not required care for an extended period after the 2005 fall.  

The panel’s main charge is to assess the fairness of the PEB determination that the lumbar condition was not unfitting.  Given the facts of the functional limitations portrayed in the NARSUM, the assessment that the condition failed retention standards, and that it was subject to an L3 profile at separation, the panel carefully considered whether it was appropriately recommended as separately unfitting and subject to service rating.  Given the lack of any clinical acuity for an extended period of time and the absence of any evidence explaining an exacerbation, however, members agreed that there was inadequate performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  This conclusion was corroborated by the fact that the commander failed to note it as an issue.  Furthermore, the panel agreed that the clinical facts and the PEB rationale were well aligned with DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral), which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the lumbar condition, so no additional disability rating is recommended.   

BOARD FINDINGS:  In the matter of the left ankle condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended lumbar condition, the panel recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190004104, XXXXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXXXX:

	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