RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2012-01231
BRANCH OF SERVICE:  Army	BOARD DATE:  20140318
SEPARATION DATE:  20021015

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (12B/Combat Engineer) medically separated for Achilles tendinitis.  The CI injured his right Achilles tendon in July 2000 while playing football.  He underwent extensive conservative treatment and therapy, but his condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3/H2 profile and referred for a Medical Evaluation Board (MEB).  The right Achilles tendinitis condition and the right ear hearing loss (HL), characterized as “chronic right Achilles tendonitis” did not meet retention standards and “hearing loss right ear” met retention standards, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB adjudicated “Achilles tendinitis, right” as unfitting, rated 0%.  The hearing loss was found not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION: “Hard for me to sleep at night always thinking about the death of my friends and having dreams always talking to him in my dreams.  The ringing in my ear and headache makes it hard for me to hear, walking with a limp after sitting and standing for a long time.”

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 Achilles tendinitis condition is addressed below.  The right ear hearing loss, as per the contention, is also within the DoDI 6040.44 defined purview of the Board and will be reviewed.  A mental health condition, as per the contention “hard for me to sleep at night always thinking about the death of my friends and having dreams always talking to him in my dreams” was not identified in the PEB; and therefore, not within the Board’s purview.  This and any condition 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 20020626	VA* - (2 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Achilles Tendinitis	5024	0%	Achilles Tendinitis, Right Chronic	5024-5071	20%	20021210	
Hearing Loss Right Ear	Not Unfitting	Profound Sensori-neural Hearing Loss, Right Ear	6100	NSC	20021210	
No Additional MEB/PEB Entries	Other x 6	20021210	
Combined:  0%	Combined:  30%	
* Derived from VA Rating Decision (VARD) dated 20030128 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that suggests another rating should have been conferred for other conditions documented at the time of separation.  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  However, the Department of Veteran Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Achilles Tendinitis. The CI first presented in July 2000 with a one-day history of right ankle pain after being kicked while playing football.  He was treated conservatively with rest and medications without resolution.  Ankle X-rays taken in August 2000 were normal.  He was placed in a cast from February to May 2001 and then placed in a cam walker without resolution of his pain.  A magnetic resonance imaging (MRI) taken in April 2001 was significant for post-traumatic changes in the Achilles tendon on the right.  A physical therapy appointment in May 2001 was significant for symmetric range-of-motion (ROM) of the ankles and a reduced calf raise on the right.  He was issued a heel lift, but remained symptomatic.  Despite continued conservative management, he was unable to meet full duties and was referred to MEB during a May 2002 orthopedic appointment.  The commander’s statement signed in May 2002 stated the CI could not perform his duties secondary to the Achilles tendon injury.  The MEB’s examination was held in May 2002.  The CI reported difficulty since he had torn his Achilles tendon.  The examiner noted tenderness to palpation over the insertion of the Achilles tendon into the heel.  The ROM is charted below.  The CI was issued a permanent L3 profile.  In June 2002, orthopedics noted he had full ROM, but reduced strength.  The CI's activities were unrestricted except for those that put strain on his right ankle.  The general narrative summary dated 12 June 2002 was based on the above examination.  An orthopedic addendum held on the same day noted that the Achilles tendon was enlarged and the previous MRI consistent with a partial tear.  Strength was 4 of 5, but ROM was normal and there was no instability.

At the VA Compensation and Pension examination performed 2 months after separation, the CI reported continued pain since the initial injury.  On examination, he was tender over the lower Achilles tendon and had limited ROM as charted below.  Plantar flexion was weak and he was unable to stand on his toes.  The X-rays were normal.  The 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.

Right Ankle ROM
(Degrees)	MEB ~5 Mo. Pre-Sep	Orthopedic NARSUM~4 Mo. Pre-Sep	VA C&P ~2 Mo. Post-Sep	
Dorsiflexion (20 Normal)	15	Full 	15	
Plantar Flexion (45)	25	Full 	35	
Comment	Utilized goniometer;
Tender Achilles	Weakness	Weak plantar flexion	
§4.71a Rating	10%	0%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the Achilles tendinitis without limitation in motion at 0% coded 5024, tenosynovitis.  The VA rated the right Achilles tendinitis at 20% and coded it 5024-5271, with limitation of motion of the ankle.  The Board noted that two of the three examinations proximate to separation documented limitation in motion.  No incapacitation was noted.  The Board found no advantage to the 5271 code compared to the 5024 used by the PEB, but determined that both supported a 10% rating.  No route to a higher rating using a different code was available.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the Achilles tendinitis condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that right HL was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The HL had been profiled H2 since accession and was waived for enlistment.  The profile did not subsequently change and it was not implicated in the commander’s statement.  It was not judged to fail retention standards.  Comparison of the accession hearing test with that for the MEB shows that some frequencies improved while others worsened.  An otolaryngology evaluation in April 2002 noted that hearing loss on the right had been present since age nine.  The CI denied tinnitus (ringing in the ears).  His MOS was changed to remove him from a high noise environment.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the right HL significantly interfered with satisfactory duty performance after he had been changed to an appropriate MOS.  The condition clearly existed prior to service and there is no evidence for service aggravation beyond normal progression.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the HL condition and so no additional disability rating are recommended.

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 Achilles tendinitis condition, the Board unanimously recommends a disability rating of 10%, coded 5024 IAW VASRD §4.71a.  In the matter of the contended HL condition and IAW VASRD §4.87, the Board unanimously recommends no change from the PEB determination as not unfitting.  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	
Achilles Tendinitis, Right, Chronic	5024	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120703, 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, AR20150013389 (PD201201231)

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