RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201277 SEPARATION DATE: 20030922 BOARD DATE: 20130314 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92Y20/Unit Supply Specialist), medically separated right peroneal tendonitis with mild subluxation and snapping of the tendon over the lateral malleolus and hence forward will referred to as a right ankle condition. In June 2002 the CI noted atraumatic right ankle pain while running. She described the pain as extremely sharp, occurring daily, which increased with the wearing of her boots. She was treated extensively and conservatively with multiple modalities to include local steriod injections, casting, and custom orthotics yet none of them helped her. She was even offered surgery to correct the subluxing peroneal tendon yet declined, as the rehabilitation time was too long. The CI did not improve adequately with treatment to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded right peroneal tendonitis with mild subluxation, not responding to conservative treatment and not amenable to surgical correction. No other conditions were forwarded to the Physical Evaluation Board (PEB). The PEB adjudicated the right ankle condition as unfitting, rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with a 0% disability rating. CI CONTENTION: “Since discharge from the Military in 2003, my service connected injury to my right ankle has affected me either through having to take or change medication that only temporarily release the pain or just do not work at all. It also affects the physical activity That I am able to take part in, theis[SP] affecty [SP] Since manners in which I interact with my daughter, as I am in pain later.” (sic) 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. The asthma condition rated by the VA at separation and listed on the DA Form 294 is not within the Board’s purview. 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 20030610 VA (~1 Mos. Post-Separation) – All Effective Date 20030923 Condition Code Rating Condition Code Rating Exam Right Peroneal Tendonitis with Mild Subluxation and Snapping of the Tendon Over the Lateral Malleolus 5099 5024- 5003 0% Right Ankle Peroneal Tendonitis 5014-5271 10%* 20030804 .No Additional MEB/PEB Entries. Asthma 6602 10% 20030804 Combined: 0% Combined: 20% *Increased to 20% and recoded from 20100128 with an increased combined rating to 30% effective 20100128. ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which her service-incurred condition continues to burden her. 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. The DES 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 (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. Right Ankle Condition. In the summer of 2000 the CI began having atraumatic right lateral ankle pain and was diagnosed with peroneal tendonitis. She reasonably declined surgical treatment to correct a subluxing peroneal tendon due to a potential long rehabilitation. Conservative treatment attempts were made with custom foot orthotics with lateral and medial wedges, short leg cast for a month, steroid injections none of which provided significant relief. The permanent profile limitations included; no prolong standing > 30 minutes, no marching, and no wearing the LBE, Kevlar, or protective mask. The profile allowed for lifting up to 10 pounds, sit-ups for the physical training testing and walk, bicycle, swim at own pace and distance. The commander’s statement corroborated her medical condition and the significant functional limitations impairing her ability to perform in her MOS. There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Ankle ROM MEB ~6 Mos. Pre-Sep PT ~4 Mos. Pre-Sep VA C&P ~1 Mo. Pre-Sep Right Right Right Dorsiflexion (0-20°) 10° 14° Plantar Flexion (0-45°) 40° 35° Comment Decreased ROM, painful motion §4.71a Rating 10% 10% 10% At the MEB exam, the CI reported chronic right ankle pain. She was not taking pain medications at the time of the exam. The MEB physical exam demonstrated tenderness to palpation at the right peroneal tendon, a mild clicking sound with ROM, decreased skin pigmentation at the injection site, otherwise normal dermatologic, neurovascular and muscular findings, normal arch height, mild pronation bilaterally on stance and pain in the entire ankle with a one-legged stance and tiptoeing. At the VA Compensation and Pension (C&P) exam after separation, the CI additionally reported constant ankle pain, 7-8 of 10 at its baseline but could reach 10 of 10 in intensity, could carry up to 30 pounds and she was not taking pain medications at the time of the exam. The C&P exam demonstrated a normal gait and posture, normal neuromuscular findings of the lower extremities, and normal right ankle X-rays. The Board directs attention to its rating recommendation based on the above evidence. This rating includes consideration of functional loss lAW VASRD §4.10 (functional impairment), §4.40 (functional loss), §4.45 (DeLuca), and §4.59 (painful motion). The Board notes that the VA used the MEB’s goniometric readings which is compliant with VASRD §4.46 (accurate measurement) which were also similar to the PT ROM exam. The PEB and VA chose different coding options for the condition, but this did not bear on rating and both assigned a rating IAW VASRD §4.71a—Schedule of ratings–musculoskeletal system. The PEB’s DA Form 199 reflected application of the USAPDA pain policy for rating, and its 0% determination was inconsistent with §4.71a standards for the 5003 code (arthritis, degenerative). The VA assigned a 10% rating for decreased painful motion which is consistent for the 5271 code (limitation of, ankle). The Board agreed there is no evidence of incapacitating episodes to support additional or a 20% rating under the 5003 code. The Board considered higher ratings under the VA’s chosen code or under the 5020 code (synovitis) and 5024 code both of which default to the 5003 criteria, and agreed the evidence is insufficient to justify a higher rating under these codes. There is no evidence of ratable peripheral nerve impairment which would provide for additional or higher rating. 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 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. As discussed above, PEB reliance on the USAPDA pain policy for rating right ankle was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the right ankle condition, the Board unanimously recommends a disability rating of 10%, coded 5099 5024-5003 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 her prior medical separation: UNFITTING CONDITION VASRD CODE RATING Right Peroneal Tendonitis with Mild Subluxation and Snapping of the Tendon Over the Lateral Malleolus 5099 5024-5003 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120627, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxx, AR20130006864 (PD201201277) 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 xxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)