RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02369
BRANCH OF SERVICE:  Army	BOARD DATE:  20150424
SEPARATION DATE:  20040727

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Fire Support) medically separated for a left ankle condition.  The left ankle could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Chronic left ankle pain s/p [status post] lateral reconstruction for instability” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (chronic low back pain [LBP] as medically unacceptable) for PEB adjudication.  The Informal PEB adjudicated “chronic pain, left ankle s/p lateral reconstruction” as unfitting, rated 10%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The chronic LBP was adjudicated as not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “Ankle pain, had reconstruction with continued issues.  Unable to carry rucksack.  Recently had to get 2^nd reconstruction, limp constantly.  Unable to play sports, or do anything that applies pressure to ankle.  Know no feeling in 1/2 foot.”  The CI also included a two page letter with his application that was reviewed by the Board which addressed both the back and the ankle.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20040429 | VA* - based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Left Ankle Pain | 5099-5003 | 10% | DJD, Left Ankle, Post Surgical Reconstruction | 5010-5271 | 10% | STR
Chronic Low Back Pain | Not Unfitting | Facet Dysfunction, L4-5 | 5299-5237 | 10% | STR
Other x 0 (Not In Scope) | Other x 2
RATING:  10% | COMBINED RATING:  20%
*Derived from VA Rating Decision (VARD) dated 20040730 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Left Ankle Pain.  While performing physical training in February 2002, the CI sustained an injury to his left ankle.  Persistent pain and ankle instability led to a surgical reconstruction of chronically torn ligaments in December 2002.  Although ankle instability resolved after surgery, the CI experienced persistent pain that did not adequately respond to conservative treatment.  X-rays showed degenerative changes of the ankle joint.  The narrative summary (NARSUM) on 9 March 2004 (5 months prior to separation) noted ankle pain exacerbated by prolonged standing, running, jumping, stair climbing or high impact exercise.  Examination showed non-tender ligaments and intact ankle stability.  The surgical incision site was healed but tender.  Ankle plantar flexion was 40 degrees (normal to 45 degrees) and dorsiflexion was “up to neutral” (i.e. 0 degrees; normal to 20 degrees).

At a VA evaluation on 9 December 2004 (4 months after separation) the CI was observed to have a normal gait.  A VA orthopedist on 22 February 2005 (7 months after separation) reported that the left ankle displayed “full ROM” (range-of-motion) and no evidence of instability.  Magnetic resonance imaging reportedly showed a normal ankle joint.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB relied on an analogous code 5003 (degenerative arthritis) for a 10% rating while the VA also assigned a 10% rating under a combination 5010-5271 code (arthritis due to trauma; limitation of ankle motion).  Since there was no ankylosis present, rating under the 5270 or 5272 codes was not supported.  The Board considered the ROM in evidence.  A 10% rating is warranted for “moderate” limitation of motion and 20% rating for “marked” limitation of motion.  Board members agreed that “moderate” limitation of ankle motion was reflected in the evidence, and therefore the 10% rating was justified on that basis.  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 chronic left ankle pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that chronic LBP was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The CI developed LBP after falling off a truck in 2002 and required treatment with pain medication and physical therapy.  According to the NARSUM examiner, LBP was exacerbated by heavy lifting, bending or prolonged standing, but symptoms were usually controlled with over-the-counter pain medication.  Although the NARSUM described the pain as “mild” and “occasional in frequency,” the condition was deemed to be medically unacceptable.  Examination showed no tenderness or painful motion.  The NARSUM orthopedist reported that X-rays were uncertain regarding the presence of an L4 vertebral compression fracture.  At the MEB exam the CI reported that LBP occurred daily.  The examiner noted bilateral paraspinal tenderness, no spasm, and full ROM.  The commander’s statement did not specify conditions that impacted duty performance, and the permanent profile named only the ankle condition.

Although the chronic LBP condition was deemed to be medically unacceptable by the NARSUM and MEB, it was not profiled or implicated in the commander’s statement.  This condition was reviewed and considered by the Board.  There was no performance based evidence from the record that chronic LBP significantly interfered with satisfactory duty performance, nor were there physical examination findings which would logically be associated with significant disability.  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 the chronic LBP condition and so no additional disability rating is 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating chronic left ankle pain was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the chronic left ankle pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended chronic LBP condition, 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131001, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX, AR20150012435 (PD201302369)

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

PD-2013-02369