RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01599
BRANCH OF SERVICE:  Army	BOARD DATE:  20141008
SEPARATION DATE:  20030813

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV1/E-1 (92Y/Basic Trainee) medically separated for leg condition.  This condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Right tibia/fibula fracture” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB for PEB adjudication.  The Informal PEB adjudicated “status post distal fibula/tibia fracture” as unfitting, rated at 0%, with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I do not understand myself why that I was award 0% at the time of discharge.  Over the years I appealed and now I am at 30%.  Still, I was ready to make a career out of serving for the US Army and it was taken form me through no fault of my own.  During my 6th week of training I broke my tibia, fibula, and ankle, while doing the commando crawl on the Warrior Tower.  Two Drill Sergeants shook me off the rope which lead to my injury, 5 wks in the hospital, medical discharge, emotional and physical distress, and change of career paths.  I have tried to see doctors for years about the pain in my leg but they ignore me and want to talk more about emotional distress.  I still have pain in my ankle and leg when it rains, gets cold, and even stand/walk too long.  I still flinch when I look back at that day.”

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 leg fracture condition is addressed below.  The contended [right] ankle condition was not identified by the MEB or PEB and thus is not within the DoDI 6040.44 defined purview of the Board.  

In addition, the CI was notified by the Army that her case may be eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process.  Since the CI responded to this mailing, it is presumed that she has elected review by the PDBR for a MH condition at the time of her PEB as she did identify any MH condition on her DD Form 294.  In accordance with Secretary of Defense directive for a comprehensive review of the MH diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination and rating of unfitting mental health diagnoses in accordance with VASRD §4.129 and §4.130.  This and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20030707	VA* - (2.9 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
[Right] S/P Distal Fibula/Tibia Fracture…	5099-5003	0%	S/P Operative Open Reduction, Right Ankle (Tibia and Fibula)	5262	0%	20031106**	
Mental Health Condition	Not Adjudicated	No VA Entry	20031106**	
Other x 0 (Not in Scope)	Other x 4 (Not in Scope)	20031106**	
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20070703 (in evidence)
Exam not in evidence, utilized VARD 20070703 comments

ANALYSIS SUMMARY:  The Board also acknowledges the applicant’s contention that suggests a higher rating should have been granted on the unfitting medical condition documented at the time of separation.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.  With regard to the applicant’s Warrior Tower injury, the Board must note for the record that it has neither the jurisdiction nor authority to scrutinize or render opinions in reference to suspected improprieties in the disposition of a case.  The Board acknowledges the applicant’s information regarding the significant impairment with which her service-connected condition continues to burden her.  

The Board acknowledges that the original VA Compensation and Pension (C&P) examination and VARD (2003 timeframe) were referenced, but not available in the evidence and could not be located after the appropriate inquiries.  Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case; it was judged that the missing evidence would not materially alter the Board’s recommendations.  

Status Post Distal Fibula/Tibia Fracture Condition.  Available treatment records indicated that CI began her basic training at Fort Leonard Wood in October 2002.  In week six of basic training, she was coming down the obstacle course when she fell ten feet and landed on her right ankle.  She had immediate pain and was unable to bear weight on her right lower extremity.  The CI stated she felt and heard a snap as she landed.  X-ray images in the emergency room demonstrated a fracture of the right distal tibia with 50% lateral displacement and about one cm of shortening.  There was a comminuted distal fracture of the right fibula with a small butterfly fragment and mild shortening.  She later reported that she had sustained a fracture of this ankle at a very young age.  She was admitted to the hospital and underwent open reduction and internal fixation of the right tibia and fibula.  She was placed on 6 weeks of convalescent leave and then re-evaluated.  She could walk on the right leg with minimal pain.  X-ray images showed good alignment of the fracture with minimal callous formation.  Convalescent leave was extended by 6 weeks.  The surgical incisions were completely healed and there was no swelling of the ankle.  There was full range-of-motion (ROM) of her right ankle and she could weight bear with a cane with minimal pain.  Repeat X-ray images showed minimal callous formation and no change in the alignment of the hardware.  She was discharged with recommendation for additional 6 weeks of unit convalescent leave and referred to MEB.

She received a P3 profile on 23 April 2003 for right tibia/fibula fractures, s/p repair.  At the MEB narrative summary (NARSUM) examination dated 22 April 2003 (approximately 4 months prior to separation, the CI reported she had no pain in her right ankle and was doing quite well.  She was concerned that strenuous activity would cause significant pain.  On physical examination of the ankle), the surgical incisions were well healed and she was nontender to palpation.  She had full ROM in all planes with 5 out of 5 muscle strength in the right lower extremity.  X-ray images showed good callous formation of the right tibia and a healed right fibular fracture.  She was asymptomatic, but at risk of repeat injury and return of pain should she return to basic training.  

Although no VA C&P examination was present in the records, the VARD dated November 2007, referenced an examination of the legs dated 6 November 2003 (approximately 3 months after separation).  At that time the CI reported pain in the left leg secondary to putting weight on the left side of her body for support after the fractured right tibia and fibula.  There was pain in the left leg if she stood for more than an hour.  Examination of the left lower leg was normal, but diagnosis of left lower leg overuse strain secondary to the right ankle condition was rendered.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the s/p distal fibula/tibia fractures condition as unfitting with a 0% disability rating, coded 5099-5003, analogous to degenerative arthritis. VA rated the s/p operative open reduction, right ankle (tibia and fibula) condition 0% coded 5262 (malunion of tibia and fibula).  The Board considered whether CI met criteria for a higher disability rating under VASRD codes 5003 or 5262.  The CI was issued a permanent L3 profile for right tibia/fibula fractures with restrictions of running, jumping or marching.  X-rays showed that the right fibula had healed, but that the right tibia was still undergoing callous formation, suggesting incomplete healing.  The CI was also supporting herself on the left leg when standing.  The PEB noted that CI had functional limitations and was at unacceptable risk of re-injury should training resume.  The examiner opined that the CI was at potential risk to do more harm to herself by continuing training.  With the application of §4.3 (reasonable doubt), the Board concluded that the CI met the criteria for slight disability in the right leg at the time of separation.  After due deliberation, considering all of the evidence, the Board recommends a disability rating of 10% for the right tibia/fracture condition.

Mental Health Review Condition.  There were no MH treatment records for review.  On the DD Form 2807-1 the CI reported depression/excessive worry, trouble eating, difficulties sleeping and fear of doing almost anything.  She reported she was somewhat depressed.  Neither the MEB history/physical nor NARSUM listed a MH diagnosis.  There were no VA C&P examinations available.  The MEB did not forward a MH diagnosis to the PEB; who did not adjudicate a MH diagnosis.  There is no commander’s statement to implicate a mental illness and there was no profile for mental illness.  The only report of a mental illness appeared in the July 2007 VARD where a claim for posttraumatic stress disorder (PTSD) was documented and a VA psychiatric evaluation in February 2005 referenced diagnoses of eating disorder and major depressive disorder.  Another VA psychiatric evaluation dated June 2007 rendered a diagnosis of PTSD, likely exacerbated by her fall during basic training.  Both of these MH evaluations/diagnoses occurred outside of the 12 month pre and post-period proximal to the date of separation on 13 August 2003 and are not eligible for consideration.

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the DES.  The evidence of the available records showed no MH diagnoses were rendered during the DES process therefore the Board agreed there were no inappropriate changes in diagnosis and therefore, determined that no MH diagnoses were changed to the CI’s possible disadvantage in the disability evaluation.  This CI therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board also considered whether any mental condition, regardless of specific diagnosis was unfitting for continued military service.  The Board agreed that evidence of the record reflected minimal MH related symptoms.  There was no evidence from the medication profile of psychotropic medication use prior to separation.  There was no evidence of suicidal or homicidal thoughts.  The CI was never seen in the emergency room for MH concerns not evidence of psychiatric hospitalizations.  The Board, therefore, concluded that there was insufficient evidence that any MH condition rose to the level of being unfitting at the time of separation and therefore, none were subject to service disability rating.

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.  In the matter of the s/p distal fibula/tibia fracture condition, the Board unanimously recommends a disability rating of 10%, coded 5262 IAW VASRD §4.71a.  The Board concluded that no mental disorder, regardless of the diagnosis, rose to the level of 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/her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
S/P Distal Tibia/Fibula Fracture Condition	5262	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130815, 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, AR20150006988 (PD201301599)

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 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