RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2013-02684	
BRANCH OF SERVICE:  Army 	 BOARD DATE:  20150424
SEPARATION DATE:  20071227		 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (42A, Human Resource Specialist) medically separated for right ankle pain.  The condition could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty (MOS), but she was allowed to perform an alternate physical fitness test.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The ankle condition, characterized as “right ankle pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (adjustment disorder) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the right ankle pain as unfitting, rated 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining condition was determined to not constitute a physical disability IAW DODI 1332.38, encl 5.  The CI made no appeals and was medically separated. 

CI CONTENTION:  “The Board didn’t consider my whole medical record.”  

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 20071030	VA* - (1 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Pain…	5099-5003	0%	Right Ankle DJD	5010	10%	20080123	
Other x 1 (Not in Scope)	Other x 5	
RATING:  0%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20080225 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Ankle.  The CI twisted her right ankle on 29 October 2003 and was treated with duty modifications and medications.  Her pain persisted though and X-rays taken on 1 December 2003 showed no fracture although soft tissue swelling was present.  She again sprained her right ankle on 12 July 2004 and was managed similarly but also was on crutches for a week.  Again, X-rays were normal.  She was issued a brace for instability and referred to physical therapy (PT).  Her symptoms persisted and she was then evaluated in podiatry and instability was determined.  An MRI on 7 March 2005 was suspicious for a tear of one of the ankle ligaments (commonly injured in an ankle sprain such as she sustained).  She then had surgery for her ankle on 11 October 2005.  She apparently did well until she reinjured her ankle and, consequently, had surgical revision on 18 October 2006.  Following rehabilitation in PT, she was evaluated in podiatry on 15 June 2007 and reported no pain and that she could walk in regular combat boots.  The ankle was stable on examination and she was found fit for duty.  Almost 6 weeks later, on 24 July 2007, the podiatrist noted that the CI was in the MEB process as she could not wear combat boots to perform her military duties.  At the MEB examination on 18 September 2007, the CI reported right ankle pain with range-of-motion (ROM) testing.  The examiner noted decreased sensation near the surgical scar and the use of an ankle brace.  She did not show a painful gait.  The narrative summary (NARSUM), dated 4 October 2007, noted she had been unable to fully function in combat boots and had been entered into the MEB process the previous July.  On examination, she had pain with deep palpation of her scar.  The ROM was recorded as full and the ankle was stable.  She was noted to be fully functioning in a shoe of comfort, but could not tolerate her combat boots.  The CI failed to show for the VA General Compensation and Pension (C&P) examination.  The goniometric range-of-motion (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.

Right Ankle ROM
(Degrees)	MEB ~2 Mo. Pre-Sep	VA Treatment ~1 Mo. Post-Sep	
Dorsiflexion (20 Normal)	10,15,10 (Left 15)	12	
Plantar Flexion (45)	45,45,45	45	
Comment		From VARD	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the ankle condition at 0% citing the Army pain policy and using the analogous code 5099-5003 (degenerative arthritis).  The VA rated the right ankle at 10% for degenerative joint disease (DJD) using the code 5010 (traumatic arthritis).  The Board considered these codes as well as those specific for the ankle.  Limited dorsiflexion was present although also noted for the left ankle.  The CI did report painful motion at the MEB examination with ROM testing supporting a 10% rating IAW VASRD §4.59 (painful motion).  The Board found no route to a rating higher that the 10% rating adjudicated by the VA regardless of the code utilized.  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 retaining the PEB code 5099-5003.  

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that adjustment disorder was not a ratable condition.  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.  The adjustment disorder was not profiled or implicated in the Commander’s statement and was not judged to fail retention standards.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance.  Moreover, this is not a physical disability IAW DoDI 1332.38 E5.1.2.9.4.  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 adjudication for the implied contended adjustment disorder 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 the right 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 5099-5003 IAW VASRD §4.71a.  In the matter of the contended adjustment disorder conditions, 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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Right Ankle Pain… 	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD 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, AR20150012732 (PD201302684)

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						      XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA