RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2012-01165
BRANCH OF SERVICE:  Army	BOARD DATE:  20141119
SEPARATION DATE:  20031211

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SFC/E-7 (95B40/Military Police) medically separated for right ankle injury.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right ankle injury condition, characterized as “right ankle traumatic injury, status post-surgical repair” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “right ankle injury” as unfitting, rated at 0%.  The CI made no appeals and was medically separated.

CI CONTENTION:  See members DDF 294 dated 20120710.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting right ankle injury condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB – Dated 20031021	VA -  based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Injury	5010	0%	Status-Post Surgical Repair, with Recurrent Injury and Osteoarthritis of the Right Ankle	5010	10%	STR	
Other x 0 (Not in Scope)	Other x 1 (Not in Scope)		
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20050211 (most proximate to date of separation)

ANALYSIS SUMMARY:  

Right Ankle Condition.  The CI’s service treatment record (STR) indicated that the CI’s right ankle condition occurred in 1999 and was surgical repaired in 2000, which consist of an internal fixation device and ligament repair; therefore this condition was considered to exist prior to service entry (EPTS), but was permanent service aggravated.  During his first deployment, November 2001 to August 2002, the CI initially felt right ankle pain while running; per the 14 October 2003 line of duty (LOD) determination, no additional injuries was documented and no further evaluation was noted in the records available for the Board’s review.  The LOD determination dated 3 July 2003; the CI’s “twisted” his right ankle while jumping from a Humvee during his second deployment, January through December 2003.  It is not clear from the CI’s service treatment records if the CI was evacuated from theater due to his injury or returned at the his deem rotation time.  Nevertheless, he was referred into the MEB process for his right ankle condition.  The MEB history and physical (DD Form 2807-2808) dated 7 August 2003 only documented a right ankle scar.  Although, the CI was issued an L3 profile dated 25 August 2003, for chronic right ankle instability and osteoarthritis (OA).  

The 25 September 2003 MEB narrative summary (NARSUM) by orthopedic surgery recounted the established injury and surgical history to date.  Despite surgery and physical therapy, the CI complained of chronic right ankle pain at rest.  Pain was increased with activity such as walking more than 50 yards, prolonged standing (greater than 15 minutes), climbing stairs, running, etc. and relieved with rest and elevation.  The CI denied numbness or tingling in his foot.  Physical examination documented an antalgic (assuming a posture or gait to lessen pain) gait; that the right ankle showed mild soft tissue edema (swelling) with tenderness and strength was reduced for twisting in and out, but ligamentous laxity was present.  A right ankle X-ray image showed OA.  The examiner opined that surgical intervention was not likely to allow the CI to be able to return to his current MOS.  The range-of-motion (ROM) is documented the chart below.

The 17 December 2003 (a week post-separation), the orthopedics’ surgical evaluation recounted the established injury and surgical history to date.  Physical exam documented limping on the right side, able to perform toe-heel raise with difficulty, but was unable to squat.  The right ankle demonstrated a well-healed surgical incision, generalized swelling and no visible atrophy.  The right ankle was tender at the lateral incision, peroneal tendon and medially.  Right ankle active ROM was not clearly documented for dorsiflexion therefore the probative value is thereby reduced.  There was laxity noted on examination.  A right ankle X-ray image showed an intact surgical hardware and degenerative changes.  

The Board directed its attention to its rating recommendation based on the above evidence.  The IPEB rated the right ankle condition 0% VASRD code 5010; (degenerative arthritis).  The PEB cited arthritis in one major joint, EPTS and permanent service aggravation.  The VA rating decision (14 months post-separation) rated at 10% (5010) citing painful motion of a major joint, X-ray findings of arthritis, EPTS and permanent service aggravation.  The pre-service percentage is normally deducted before assigning any service connected evaluation less than 100%.  The PEB did not document that a deduction was taken, but the rating assigned was 0% which implies that it did.  Based on the positive findings on X-ray of degenerative arthritis and limitation of motion (not otherwise compensable) a 10% rating could be supported either by citing the code 5010 or by painful motion IAW VASRD §4.59.  This results in a 0% rating for the ankle condition, after the EPTS deduction for painful motion, as was adjudicated by the PEB.

The Board first considered if the condition had an EPTS component.  Both the PEB and VA made this determination and the Board observed that the evidence clearly supports this.  The Board noted that in 2002, the CI was unable to complete a run due to ankle pain and that was the CI’s first attempt to run since his surgery.  However, the LOD in 2003 clearly indicates that the CI reinjured his ankle jumping off of a Humvee.  While it is clear that the condition had an EPTS component, the information available for review was not sufficient to determine the level of function at activation.  Therefore, the Board majority found that no EPTS deduction can be determined and none is recommended.  The Board then considered the rating.  The documented ROM did not support a minimal rating under code 5270 (ankle, ankylosis of) or 5271 (ankle, limited motion of).  There was no ankylosis for consideration under 5272 (subastragalar or tarsal joint, ankylosis of).  There was no malunion for consideration under 5273 (os calcis or astragalus, malunion of).  There was no excision of the astragalus for consideration under 5274 (astragalectomy).  Board members agreed that there was sufficient evidence of pain prior to separation, as well objective exam and imaging findings, to support a 10% rating considering functional loss and painful motion (§4.40, §4.59).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10% for the right ankle condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the right ankle condition, the Board by a vote of 2:1 recommends a disability rating of 10%, coded 5010 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Right ankle condition	5010	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120710, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

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 XXXXXXXXXXXXXXX, AR20150002669 (PD201201165)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA