RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02566
BRANCH OF SERVICE:  Army	BOARD DATE:  20141125
SEPARATION DATE:  20050509

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A/Automated Logistical Specialist) medically separated for chronic 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).  Right ankle pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (dyslipidemia, neck / back pain and acne) for PEB adjudication.  The Informal PEB adjudicated the right ankle condition as unfitting, rated at 0%.  The remaining conditions were determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Issues still affect daily life.  Have been seen numerous times for ankles in VA.  Back should have been included as I have had to repeatedly see a chiropractor throughout the years.  Ankles causing flat feet & pain (See VA docs).”

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.  The requested back condition, which was determined to be not unfitting by the PEB, is likewise addressed below.  

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 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 Veteran Affairs, operating under a different set of laws.  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 20050325 | VA – (at Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Rt Ankle Pain | 5099-5003 | 0% | Rt Ankle Sprain | 5271 | 10% | 20050427
Neck and Back Pain | Not Unfitting | Lumbar Spine Strain | 5237 | 10% | 20050427
| | Cervical Spine Strain | 5237 | 10% | 20050427
Other x 2  (Not in Scope) | Other x 1 | 20050427
Rating:  0% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20060206 (most proximate to date of separation)   

ANALYSIS SUMMARY:  

Right Ankle Condition.  The narrative summary (NARSUM) noted the CI initially sprained her right ankle in 2001; subsequently she had multiple ankle sprains, the most significant occurred while deployed in 2003.  Documentation in the CI’s service treatment record (STRs) indicated the CI had an magnetic resonance imaging (MRI) of the right ankle on 15 November 2003, that revealed fluids around the posterior tibialis tendon (calf muscle tendon that attaches to the inside of the foot, and passes behind the medial malleolus).  Podiatry consultant on 14 January 2004 stated that the MRI was consistent with a longstanding tear of the posterior tibial tendon.  The orthopedic physician assistant, noted chronic right ankle instability that’s secondary to multidirectional instability as the normal for the CI.  According to the MEB orthopedic consultation, right ankle films dated 22 January 2004 were normal and stress X-rays did not reveal any instability.  The CI’s ankle pain continued despite conservative treatments to include injections around the tendon that only provided temporary relief from pain/discomfort.  In September 2004, the CI had arthroscopic debridement of the ankle and the surgeon noted synovitis and with no other joint abnormality.  Following the surgery, the CI experienced a decreased in frequency of sprains, nonetheless, pain with tingling in the first web space of her toes continue to be an issues.  The CI was re-evaluated by a second orthopedic specialist who orders additional diagnostic studies that included a bone scan that was obtained on 18 November 2004; it revealed mild stress changes of the ankle that was confirmed by X-ray images, showing an old avulsion fracture of the inner ankle.  The ankle was casted for 5 weeks without significant improvement.  

At the MEB Orthopedic consultation on 7 February 2005 (approximately 3 months prior to separation), the CI reported ankle pain that rated 5/10 on the pain chart, that was aggravated by activities such as running or prolonged walking.  On examination there was tenderness to palpation of the inner aspect of the ankle (medial malleolus) as well as the ankle tendon.  The examiner indicated the function of the tendon was intact.  Ankle range-of-motions (ROM) were 20 degrees, dorsiflexion (normal at 20 degrees) and 45 to 50 degrees plantar flexion (normal 45 degrees) without instability.  Decreased sensation in the first web space was noted.  At the MEB examination on 9 March 2005, the CI reported right ankle pain and recurrent sprains.  The MEB physical exam referenced the findings of the MEB orthopedic evaluation.

At the VA Compensation and Pension (C&P) examination (performed approximately 2 weeks prior separation), the CI reported right ankle pain rated 4/10 on the pain chart, that flares every 2 weeks that last for approximately 2 hours, precipitated by running.  On examination the CI’s gait was normal and there was no tenderness, swelling or deformity of the ankle.  Ankle ROM was dorsiflexion of 20 degrees and plantar flexion of 40 degrees, with decreased to dorsiflexion to 15 degrees and plantar flexion by 30 degrees; with pain on repetitive testing.  Muscle strength, reflexes and sensation were normal, except for decreased sensation in the first toe web space.   Right ankle X-ray images revealed no degenerative joint disease yet a small bony density was noted, thought to be either evidence of an old avulsion fracture or normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the ankle condition at 0%, coded 5099 5003 (analogous to degenerative arthritis) and the VA rated the ankle condition as 10%, coded 5271 (limited ankle motion) for painful, limited motion.  The Board agreed that the evidence in record supports a 10% rating for the right ankle coded 5271 for moderate limitation of motion.  The Board reviewed to see if there was a path to a higher rating than 10% IAW §4.71a.  According to code 5003 criteria, a 20% rating requires evidence of degenerative joint disease in two or more joints with occasional incapacitating exacerbations, which is not present in this case.  The code 5271 rating criteria are subjective with a 10% rating description of “moderate” ankle limitation and a 20% for “marked” ankle limitation.  Members agreed the evidence of a normal gait and loss of motion at the C&P examination provided support for the characterization of moderate and not marked, consistent with a 10% rating.  There was no other ratable impairment of the ankle.  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, coded 5271.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the back pain condition 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.

Back Pain.  The MEB DD 2808 report of medical examination noted normal examination of the spine and listed a diagnosis of chronic low back pain (LBP) and indicated “controlled with chiropractic treatment”.  The MEB NARSUM on 9 March 2005 (approximately 2 months prior separation), noted in the past medical history that the CI had “mechanical back pain” and was receiving chiropractic treatment.  A diagnosis of back pain was listed, which did not cause the CI to fall below retention standards.  Scant chiropractic notes in STRs indicated the CI was treated for LBP in February and March 2005.  The neck and back condition was neither profiled nor implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the STRs that either the neck pain, back pain, or both, significantly interfered with satisfactory duty performance.  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 contended back condition and so no additional disability ratings 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 ankle condition, the Board unanimously recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  In the matter of the contended back 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 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
Chronic Right Ankle Pain | 5271 | 10%
Back | Not Unfitting
RATING | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131115, 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, AR20150006299 (PD201302566)

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

PD-2013-02566