RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1100490 SEPARATION DATE: 20080618

BOARD DATE: 20120712

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (11B, Infantry) medically separated for a left ankle condition. He was injured in 2007 and required surgical fixation of the ankle. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The condition, characterized as “chronic pain, swelling, stiffness, left ankle and foot,” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions were submitted by the MEB. The PEB characterized the condition as “limitation of motion, left ankle following surgical repair;” and, adjudicated it as unfitting, rated 20%, citing criteria of the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 20% disability rating.

CI CONTENTION: “My disability rating of 20% was based on ROM under VA Code 5271. However, I believe that there was sufficient evidence at the time (and over the next few years when cross-checked with VA records) that my injury could of fall [sic] within other codes which would of rate my disability at 30% or higher. For example, VA Code 5270 could be used because my injury resulted in bone, cartilage, and tendon damage and the condition made my ROM of my left ankle dorsiflexion -8 (active) and -5 (passive) when the MEB ROM exam was conducted by [provider name] on 28 January, 2008. … Also, as noted on the MEB Summary and VA doctors, my left great toe is numb, and grossly stiff, which can be rate under VA Code 5281 (10%). Due to my injuries, the doctors at the [city] VA has [sic] given me various braces … to stabilize my weak left foot because it is unstable when walking on uneven terrain. VA Code 5277 states a minimum rating of 10%. These injuries, coupled with severe arthrofibrosis of the ankle and foot as well as my reduced weight-baring limitation should of [sic] all been taken into consideration at the time of the Medical Board. I believe that there is enough evidence and enough medical conditions that my injury can fall within the scopes of VA Code 5284 Severe Foot Injury which entitles the injury to 30% when all factors and circumstances (and the nature of the injury, which is guaranteed to get worst [sic] the older I get according to the doctors).” The CI also attached a written statement to his application which was reviewed by the Board and considered in its recommendations.

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (DoDI) 6040.44 (Enclosure 3, paragraph 5.e.2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” All of the conditions elaborated by the CI in his alternate coding appeals are encompassed by the MEB’s “ankle and foot” submission, although the PEB’s nomenclature implied that only the ankle limitation of motion was subsumed in its rating. The Board judged; however, that the associated foot involvement was inherently linked to the PEB’s adjudication (with or without a separate fitness determination). It was thus agreed that all of the contended pathology falls within the DoDI 6044.40 defined purview of the Board; except for consideration of a separate rating for the left great toe which cannot be sufficiently linked to either the MEB or PEB descriptions of the rated condition. The left great toe condition, or any conditions or contention not requested in this application, remain eligible for future consideration by the Army Board for the Correction of Military Records (ABCMR).

RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES 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 (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximate to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of fitness decisions and rating determinations for disability at the time of separation. DoDI 6040.44 specifies a 12-month interval for special consideration to DVA findings. The DVA; however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Left Foot/Ankle Condition. The CI suffered a fracture/dislocation of his left ankle from a parachute landing in February 2007; undergoing prompt surgical reduction and fixation. He was left with persistent pain, swelling and stiffness of his foot and ankle; along with numbness and stiffness of the great toe. There was minimal improvement with a protracted course of physical therapy (PT), bracing, and analgesics. Imaging at the time of separation demonstrated anatomic alignment, but revealed significant degenerative changes and arthrofibrosis (scar tissue) of the ankle joint space. Clinical notes indicate that there was associated pain radiating to the foot, but no specific diagnosis or pathology intrinsic to the foot is in evidence. Both the commander’s statement and the profile solely specified ankle pain. All examiners documented significantly limited range-of-motion (ROM) at the ankle, and the formal measurements in evidence are charted below.

At the MEB exam, the CI reported constant pain rated 3/10; and, experienced exacerbations with “light running” and stair climbing. At the VA Compensation and Pension (C&P) exam prior to separation, the CI reported 5/10 pain “elicited by physical activity” and stated that he could “function without medication.” Gait and motor strength were normal, but both examiners noted mild swelling and tenderness.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated under code 5271 for limitation of motion at the ankle; and, its 20% rating for “marked” limitation is the highest achievable under that code. The evidence indicates that limited ROM and pain were responsible for the unfitting functional limitations; and, VASRD §4.71a directs that traumatic arthritis “will be rated on the basis of limitation of motion” unless it “is noncompensable under the appropriate diagnostic codes.” The PEB’s code and rating is therefore optimal and VASRD compliant, unless the associated foot disability can support a higher rating without violation of VASRD §4.14 (avoidance of pyramiding). The VA also rated only the ankle, but chose to rate under the analogous code 5270 for ankylosis (frozen joint). The VA’s 20% rating is for ankylosis fixed in plantar flexion less than 30⁰. The next higher rating (one of the possibilities specified in the rating) requires ankylosis fixed at plantar flexion in the 30⁰ - 40⁰ range, or in dorsiflexion at 0⁰ - 10⁰. Although analogous rating for ankylosis can be entertained for mobile, but functionally frozen joints, the evidence makes it clear that 50% of normal joint excursion was retained in this case. The Board therefore cannot justify an analogous rating under 5270 in general; and, specifically not for a rating >20%. The contention offers two paths for rating which would subsume the foot disability. The code 5277 (weak foot, bilateral), suggested for an additional 10% rating, is not supported by the evidence. There was not bilateral involvement, and all examiners documented the absence of weakness. The suggested code 5284 (foot injuries, other) was entertained by the Board as a “blanket” code which would subsume the ankle and foot disability. The highest achievable rating under 5284 is 30% for ‘severe’ disability. All members agreed, however, that the rating should not default to a foot code since the dominant injury and pathology were specific to the ankle; and, since the prevailing criteria for unfitness were linked only to the ankle. It was further agreed that separate ratings for the ankle and foot could not be supported on the grounds of both §4.14 restrictions and separate fitness considerations. 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 left ankle condition (subsuming the foot disability).

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 left ankle (and foot) 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:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110628, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXX, AR20120012971 (PD201100490)

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 XXXXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA