RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02698
BRANCH OF SERVICE:  Army	BOARD DATE:  20150521
SEPARATION DATE:  20091008

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Petroleum Supply Specialist) medically separated for a right ankle condition.  The right ankle condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Right ankle pain from arthritis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded refractive error, left wrist pain and low back pain (all meeting retention standards) for PEB adjudication.  The Informal PEB adjudicated the right ankle condition as unfitting, rated 20%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 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 20090626 | VA* (1 Mo. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Limited Motion of Right Ankle ... | 5271 | 20% | Arthritis Right Ankle ... | 5010 | 10% | 20091103
Refractive Error | Not Unfitting | No VA Entry
Left Wrist Pain, Tendonitis | Not Unfitting | Left Wrist Strain (Dominant) | 5215 | 0% | 20091103
Low Back Pain… | Not Unfitting | Low Back Strain | 5237 | 0% | 20091103
Other x 0 (Not In Scope) | Other x 2
RATING:  20% | COMBINED RATING:  20%
*Derived from VA Rating Decision (VARD) dated 20100112 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Ankle Condition.  The service treatment record (STR) documents a history of a right ankle fracture requiring surgical fixation in 1997, which was not documented in the military entrance physical of September 2006.  The CI developed ankle pain and swelling in early training (no discrete injury), and the earliest entry in the available STR is an orthopedic note of May 2007.  This noted normal exam findings (no instability) and normal range-of-motion (ROM), and an X-ray revealed surgical hardware with normal alignment and mild arthritic changes.  Despite a protracted trial of conservative management and temporary profiles, the symptoms worsened and ultimately resulted in a MEB referral.  Various STR clinic entries throughout the course of treatment document grossly normal ROM, normal gait, and a stable joint; with no evidence to the contrary; and, there is no STR documentation of periods of incapacitation.

The narrative summary (NARSUM) was conducted on 10 June 2009 (4 months prior to separation) and documented pain rated 6/10 at rest, interfering with prolonged walking and standing, and running.  The NARSUM physical examination recorded “antalgic but unassisted” gait, joint tenderness, and mild swelling.  The NARSUM measured ROM was dorsiflexion to 10 degrees (normal 20) and plantar flexion to 20 degrees (normal 45), annotating painful motion.  The L3 profile permitted running and walking at individual pace.

A VA Compensation and Pension (C&P) examination was conducted on 3 November 2009 (a month after separation).  It documented, “Ankle is sharply painful at times, especially when standing up and putting stress on the joint ... if she is running ... her ankle pops out, is unstable for a brief moment.”  The examiner specified that the CI was able to stand for an hour, with no limitation on walking.  The VA physical examination noted a normal gait and joint alignment with no instability (no comment with regard to swelling or tenderness); and, recorded normal ROM measurements, specifying the absence of painful motion or degradation with repetition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated under code 5271 (limitation of motion), providing the maximum rating of 20% for “marked” limitation.  The VA’s 10% rating, coded 5010 (traumatic arthritis, defaulting to criteria of 5003 for degenerative arthritis); but, it is noted that the C&P examination did not provide evidence for a compensable rating with strict adherence to VASRD §4.71a.  There is no applicable joint code available under §4.71a which would provide for a rating higher than the PEB’s 20%.  The Board considered analogous application of code 5299-5262 (tibia and fibula, impairment of) which offers a 30% rating for “marked” disability of the contiguous ankle.  Members agreed, however, that the functional limitations elaborated above (no gait disturbance on most exams, limitations confined to fairly strenuous demands) did not exceed the “moderate” criterion for a 20% rating under that code.  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 of the right ankle condition.

Contended PEB Conditions (Refractive Error, Left Wrist, Lumbar).  The refractive error referred to the need for a change in the CI’s corrective lens prescription (common myopia).  This was accomplished with resulting vision to 20/25 for each eye.  The profile was E1.  It is unclear why the condition was submitted to the PEB.

The NARSUM does not provide a history or exam for the left (dominant) wrist condition.  The earliest entry in the STR for the condition is from April 2008 and documents a 2-week history of pain (radial left wrist, no trauma) which the CI had also experienced in basic training.  An orthopedic entry in June 2009 (4 months prior to separation) documents intermittent pain with occasional use of a brace, diagnosed as tendonitis (De Quervain’s).  The physical exam noted radial joint tenderness without swelling, a stable joint, grossly normal ROM, and normal strength and grip.  The condition was never profiled, and the commander’s performance statement did not specifically implicate it.  The after separation C&P examination documents flares of pain (denying weakness or instability) every 2 weeks, and use of a brace about once a month.  The VA exam did not provide physical findings, but recorded normal measured ROM in all planes.

The NARSUM does not provide a history or exam for the lumbar condition, and there are no directed STR entries for back pain.  It is noted as an incidental complaint in two visits for other conditions, but was specifically denied in numerous others.  Back pain was denied on all periodic physicals until the MEB’s DA Form 2807-1 Report of Medical History, which stated “hurt lower back in Basic ... constant back pain off and on ....”  A grossly normal spine exam was recorded (as with all previous periodic physicals).  The condition was never profiled and the commander’s performance statement did not specifically implicate it.  The after separation C&P examination documented chronic back pain without radicular complaints and “no limitation to walking.”  The VA physical exam was normal with normal measured ROM in all planes, specifying the absence of painful motion or degradation with repetition.

The Board directed attention to its recommendations based on the above evidence.  The Boards main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they were 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.  None of these conditions were of significant clinical concern at the time of separation.  None were profiled or implicated in the commander’s performance statement; none resulted in documented work loss; and, all were judged to meet retention standards.  Members agreed that there was no performance based evidence suggesting that any of them significantly interfered with duty performance.  Additionally, the evidence indicates that the lumbar condition did not surface until after MEB referral; rendering the fitness determination subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  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 any of these contended conditions.

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.  In the matter of the contended refractive error, left wrist, and lumbar spine conditions, the Board unanimously recommends no change from the PEB determinations of 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 20140606, 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, AR20150014910 (PD201402698)

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-2014-02698