RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01801
BRANCH OF SERVICE:  Army	BOARD DATE:  20140528
SEPARATION DATE:  20050817

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV1/E-1 (63BC/Light Wheel Mechanic Specialist) medically separated for right ankle pain.  The right ankle 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).  The right ankle condition, characterized as “right ankle pain status post open reduction internal fixation” 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 pain status post fracture/dislocation requiring open reduction and fixation as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “My injuries are getting worse, my record should show that.”

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 condition is addressed below; and, 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 20050727 	VA - (3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Pain s/p open reduction and fixation	5271	10%	Trimalleolar Fracture, Right Ankle, S/P Open Reduction-Internal Fixation	5271	10%	20051109	
No Additional MEB/PEB Entries	Other x 1	20051109	
Rating:  10%	Combined Rating:  10%	
Derived from VA Rating Decision (VARD) dated 20051215 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate service 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.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Right Ankle Condition.  There was a paucity of pre-separation service clinical records pertaining to the CI’s ankle condition, but rather many post-service VA treatment documents up through June 2010.  Her initial post-operative course was uneventful, but pain and swelling of the right ankle remained unresponsive to different treatment modalities with non-steroidal and narcotic medication providing only partial pain relief.  Her permanent profile (July 2005) reflected many physical limitations and the commander’s statement cited the inability to perform many physical exercises and activities.  At the MEB examination (2 months prior to separation), the CI reported “…pain and swelling of her right ankle with any type of ambulation or prolonged standing.”  The physical examination revealed the right ankle with well healed and mildly tender surgical scars without erythema or edema.  There was limited range-of-motion (ROM) about her right foot/ankle.  Her distal neuro-vascular examination was normal.  There was no comment in regards to the presence of painful motion or evidence of ankylosis.  At the VA Compensation and Pension examination (3 months post-separation), the CI reported painful flare-ups with 10 minutes of walking or standing described as a sharp and stabbing pain with radiation up the right leg.  The CI noted the ability to perform activities of daily living with only limited walking ability as stated above.  On physical examination she presented without any assistive device, but did have an antalgic gait with a favored right side.  The ankle was stable with trace edema present.  ROM was decreased and Deluca positive with plantar flexion secondary to painful motion.  The goniometric 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.

DOS 20050817
Right Ankle ROM
(Degrees)	MEB ~ 2 Mo. Pre-Sep
(20050617) 	PT ~ 2 Mo. Pre-Sep
(20050620) 	VA initial visit 
~ 1 week Post-Sep
(20050824) 	VA C&P ~ 3 Mo. Post-Sep
(20051109) 	
Dorsiflexion (20 Normal)	10	2	“normal ROM”	10	
Plantar Flexion (45)	20	15		35	
Comment	n/a	therapist;	tender;
limp	painful motion; 
Deluca +	
§4.71a Rating	10%	10%-20%	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the right ankle under VASRD code 5271 (ankle; limited motion) at “moderate” 10% citing limited motion.  Board members acknowledged the significant difference in her ROM measurements going from “decreased” to “significantly decreased” in a 3-day period and considered possible examiner inter-examination bias (physician vs. physical therapist) or varied measuring techniques in light of no additional evidence from which to conclude a plausible cause for such rapid worsening of ROM (80% decline).  Clearly the initial VA (STR) visit captured the CI’s condition nearest to her separation and the improved ROM is certainly plausible with the additional 9 weeks of additional recovery time.  Although the VA (STR) examination indicated no limitation of motion and was absent comment on painful motion, Board members agreed that the presence of a limp (altered gait) would be secondarily due to an element of a “painful motion” condition and therefore, supports a 10% rating under VASRD §4.59.  Additionally, VASRD §4.40 (functional loss) is supported given the CI’s altered gait.  The Board also considered the possible rating under code 5262 (impairment of tibia and fibula) at moderate (20%) or marked (30%) ankle disability.  However, since the surgical pathology report noted the boney reduction was primarily the talus bone (inside the ankle) and not specific to the tibia and fibula, the Board considered 5262 a poor clinical fit.  There were no incapacitating exacerbations of her condition and she continued to work within her profiled restrictions.  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 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 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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131024, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX
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, AR20150001000 (PD201301801)

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						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA