RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201428 SEPARATION DATE: 20080305 BOARD DATE: 20130130 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (35T10/Military Intelligence System Maintenance), medically separated for a left ankle injury prior to entry on active duty with tearing of ligaments and fracture of the fibula. He initially injured his left ankle prior to service on a couple of occasions between 1994 and 1996 with the most severe being a tear of 3 outside ligaments, for which he had a ligament repair in April 1996. He entered active duty in 1999 on a waiver for his ankle and a year later had an avulsion fracture that led to 4 weeks in a cast. He seemed to improve until 2004 when he had a recurrence of the ankle pain accompanied by shin splints and was diagnosed with chondromalacia of the talar dome with subchondral cysts. In 2006 he underwent arthroscopic surgery. Despite physical therapy (PT), surgery and profiles the CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the left ankle condition as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). An administrative correction to the PEB was published 4 months later noting changes to the National Defense Authorization Act 2008 were now being applied; however, it did not change the rating. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “Conditions continue to worsen without any continued trauma or impact.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. 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 Army Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20071214 VA (9 Mos. Post-Separation) – All Effective Date 20080306 Condition Code Rating Condition Code Rating Exam Left Ankle Injury EPTS 5271 10% Osteoarthritis S/P Surgery, Lt Ankle Strain 5010-5271 10% 20081210 .No Additional MEB/PEB Entries. 0% X 3 / Not Service-Connected x 1 20081210 Combined: 10% Combined: 10% ANALYSIS SUMMARY: The Board acknowledges the CI’s contention regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. Left Ankle Condition. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. Left Ankle ROM (Degrees) Podiatry ~5 Mo. Pre-Sep (20070911) PT ~5 Mo. Pre-Sep (20070924) MEB (PT) ~3 Mo. Pre-Sep (20071212) VA C&P ~9 Mo. Post-Sep (20081210) Dorsiflexion (0-20) 10 20/20/20 5/4/4 20 Plantar Flexion (0-45) 20 45/45/45 40/41/40 20 Comment tender; edema; decreased inversion “Motion restriction due to reconstructive surgery and with continued pain with weightbearing” pain, tissue tightness; muscle contracture; NARSUM (20071029); pain; antalgic gait painful motion; negative DeLuca §4.71a Rating 10% 10% 10% 10% The CI received a waiver for military service in September 1999 for an existed prior to service (EPTS) left ankle injury/surgery performed when he was 15 years old. Eight months after enlistment; the CI again injured his left ankle and received treatment for an avulsion fracture of the left distal fibula. Conservative treatments provided him intermittent relief over the next 6 years with periods of pain exacerbation. Arthroscopic surgery in 2006 failed to provide long- term pain resolution. At the MEB exam, the CI reports constant left ankle pain worse with prolonged standing and better with rest and elevation. The MEB physical exam noted painful ROM with an antalgic gait favoring the left lower extremity. The exam is summarized above. Radiographs demonstrated osteoarthritic changes. At the VA Compensation and Pension (C&P) examination (9 months after separation), the CI reported daily left ankle pain and difficulty in prolonged standing, prolonged walking and stair climbing, and related these difficulties to (bilateral) ankle pain. Additionally, the CI claimed needing the use of a cane, but the VA examiner noted no use of a cane or other assisted device at the examination. The ROM exam is summarized above. The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA both rated the ankle under code 5271 criteria at 10% and the PEB specified permanent service aggravation and no EPTS deduction. It is obvious that there is a clear disparity in the dorsiflexion ROM at the PT examination dated 12 December 2007 as compared to examinations performed during 5 months prior to separation and 12-months after- separation which could have significant implications regarding the Board's rating recommendation. Therefore, the Board thus carefully deliberated its probative value assignment to these conflicting evaluations, and carefully reviewed the service treatment record (STR) for corroborating evidence in the 12-month period prior to separation. The consideration of this one measurement being an error was entertained by the Board. However, the PT examination on 12 December 2007 was the only note that specifically mentioned “muscle contracture” being present. Although the specific muscle was not identified, a contracture (spasm) of one’s lower leg calf muscles could indeed reflect such poor ankle dorsiflexion. The STR do not reveal any recurrent injury or other development in explanation of the more marked impairment reflected by the MEB measurement of dorsiflexion. The PT examiner does not make mention of the CI’s gait status whereas the narrative summary (NARSUM) examiner approximately 6 weeks earlier specifically mentioned an antalgic gait. The STR X-rays were consistent with expected post surgical findings as well as early degenerative disease. There were no incapacitating exacerbations of his condition. Upon deliberation the Board agreed in this case that the listed ROM is consistent with the PT examiner’s comments of tissue tightness and muscle contraction. The Board considered that, at the time of separation, the CI had ROM loss of his ankle and deliberated if the level were moderate (10%), or rose to the level of marked (20%) limitation. There was no evidence of joint ankylosis and therefore not meeting criteria above 20%. The Board also considered possible rating under code 5262 (impairment of tibia and fibula) at moderate (20%) or marked (30%) ankle disability. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left 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 left ankle injury condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Left Ankle Injury 5271 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120808, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130003932 (PD201201428) 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 and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)