Author: JOHN J. D'ORAZIO
Last saved by: Weathers, Janice R SrA MIL USAF AFDW SAF/MRBD
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD 13-01396	
BRANCH OF SERVICE:  Army	 BOARD DATE:  20140205
SEPARATION DATE:  20040913		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard PV2/E-2 (92Y, Unit Supply Specialist) medically separated for a right ankle condition.  The CI was on active duty for basic training when she fractured her right ankle in a fall from a training tower on 10 December 2003.  She was evacuated to a hospital and underwent surgery on the same day.  A second surgery was undertaken on 8 April 2004, but the condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was therefore issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The ankle condition, characterized as “right ankle grade I open bi-malleolar fracture”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “right ankle pain…” as unfitting, rated 20%, citing criteria of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Because I had trauma also extending from accident.”   

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 Service rating for the unfitting right ankle condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  References to a mental health condition or trauma were not considered by the PEB and are thus not in the scope of this Board.  The Board acknowledges the CI’s implied contention for Service rating of her “trauma” and/or mental health condition(s), but must emphasize that Service disability compensation may only be considered for those conditions that cut short the member’s service career.  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 Service Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040604 | VA - (1 Mo. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Right Ankle Pain… | 5271 | 20% | Residuals of a Right Ankle Fracture | 5271 | 20% | 20041028
No Additional MEB/PEB Entries | Surgical Scar … Right Ankle | 7804 | 10% |
| Other x 4 |
Combined:  20% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20041118.

ANALYSIS SUMMARY:  The Board must emphasize that the military 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, operating under a different set of laws.

Right Ankle Condition .  The injury was an open bi-malleolar fracture (i.e. bones on the inside and outside of the ankle were broken and visible through open skin).  Open reduction and internal fixation was performed the day of the injury.  Ongoing physical therapy could not sufficiently improve function and diminish pain.  On 8 April 2004 a second surgery consisted of screw removal.  The narrative summary (NARSUM) on 20 April 2004 (five months prior to separation) noted that the CI was unable to run or jump, and experienced difficulty with long walking.  She complained of pain and limping.  Physical examination showed minimal right ankle swelling.  Surgical incisions were well healed and skin was intact.  Muscle strength was normal.  She walked with a limp favoring the right ankle.  X-rays showed normal healing fracture sites.  In April 2004 it was recorded that she was biking for 20 minutes as part of her ongoing physical therapy.  At the VA Compensation and Pension (C&P) exam on 28 October 2004 (six weeks after separation), the CI reported taking anti-inflammatory and narcotic medication for pain.  She described the pain as continuous and gradually worsened through the day, but she no longer used a brace or crutches.  She was on her feet most of the day in her job working in a kitchen.  She could no longer bike, run, walk distances or play sports.  Examination showed a limping gait and diffuse ankle tenderness.  There was no ankle instability.  Range of motion (ROM) was not changed after repetition.

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.

Right Ankle ROM
(Degrees)

MEB ~5 Mo. Pre-Sep

VA C&P ~6 Wks. Post-Sep

Dorsiflexion (20 Normal) | 8 | 6
Plantar Flexion (45) | 40 | 30
Comment | | +Tenderness
§4.71a Rating | 10% or 20% (PEB 20%) | 10% or 20% (VA 20%)

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and the VA both assigned a 20% rating under the 5271 code (ankle, limited motion of).  Although 20% is the highest rating available under this code, the Board considered other routes to a higher rating.  Under the 5262 code (tibia and fibula, impairment of), a 30% rating is warranted for “malunion of, with marked ankle disability.”  However, “moderate” disability was a more accurate descriptor in this case.  Since ankylosis was not present, a higher rating likewise was not supported under the 5270 or 5272 codes.  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 pain 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 pain 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, as follows:  

UNFITTING CONDITION | VASRD CODE | RATING
Right Ankle Pain | 5271 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130811, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
	           XXXXXXXXXXXXXXXXXXX, DAF
	           President
	           Physical Disability Board of Review

SFMR-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 XXXXXXXXXXXXXXXXXXXXXXX, AR20140005221 (PD201301396)

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						     XXXXXXXXXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

PD 13-01396