RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: air force

CASE NUMBER: PD1100529 SEPARATION DATE: 20050627

BOARD DATE: 20120208

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty member, A1C/E-3 (2S031, Supply Management), medically separated for a right ankle condition. The CI suffered a pilon fracture (high impact fracture of both the tibia and fibula at the articulation with the ankle) in 2003 after falling 10-15 feet from a telephone pole during training. The CI required an open reduction with hardware fixation; and, underwent an extensive trial of rehabilitation. He did not improve adequately to fully perform within his Air Force Specialty (AFS) or meet physical fitness standards. He was issued a permanent P4/L2 profile and referred for a Medical Evaluation Board (MEB). Chronic right ankle pain was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AFI 48-123. No other conditions appeared on the MEB’s submission. The Informal PEB (IPEB) adjudicated the right ankle condition as unfitting, rated 10% under code 5271 (limitation of motion); and, the CI appealed for a Formal PEB (FPEB) which upheld the IPEB rating but changed the code to 8730. The final rating came from the Secretary of the Air Force Personnel Council (SAFPC) which adjudicated a rating of 20% under code 8721 (neuralgia) with application of the Veterans Administration Schedule for Rating Disabilities (VASRD); and, the CI was medically separated with that disability rating.

CI CONTENTION: The CI states: “I do not believe the correct percentages were used. The final rating as well did not include the mental affect the disability had to include the change of lifestyle and stress of the disability.” He lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests a Service rating should be considered for the mental health disability attendant to his unfitting ankle condition. The Board wishes to clarify that it is subject to the same laws for Service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a Service member’s career, and then only to the degree of severity present at the time of final disposition. A causality linkage of another condition with an unfitting primary condition is not a basis in itself for separation disability rating. A concomitant condition of this nature must itself be independently unfitting to merit additional rating. However the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all 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.

Right Ankle Condition. After the CI’s fall from a height in April 2003, imaging revealed a right pilon and lateral malleolus fracture with severe comminution at the articular surface. An open reduction and internal fixation resulted in the placement of two plates, 13 screws and one pin the in ankle. Subsequent surgery was needed in 2004 to remove some of the screws which were causing pain. The MEB physician (eight months pre-separation) noted a “limited ROM to the right ankle with tenderness” and a normal gait. The prognosis was “good,” but the physician noted that the “patient will most likely experience chronic ankle pain which will hinder full physical activity.” At the VA rating evaluation (three months post-separation), the examiner noted a 30 degree outward rotation of the right foot when standing at neutral. There was no specific motor exam or weight bearing radiographs in evidence to corroborate the residual abnormal stance noted by the VA Compensation and Pension (C&P) examiner. The VA goniometric measurements for plantar flexion and extension were normal, although eversion and inversion were confined to 0⁰. The examiner noted, “The pain is not debilitating. He can function and perform his daily activities. No weakness, fatigability, decreased endurance, or incoordination noted.” VA radiographs demonstrated expected post-operative findings with proper alignment of the joint space, and no mention of degenerative changes.

Based on the above evidence, the Board directed its attention to its rating recommendation for the right ankle condition. It first considered the VA’s coding choice of 5271-5272. Since ROM was not significantly limited in the VA exam and there was no evidence supporting a diagnosis of ankylosis (required of 5271), a minimal compensable rating of 10% for the ankle is achieved under this code with application of §4.59 (painful motion). A rating of more than 10% cannot be justified under codes 5271 or 5272 by the either the MEB or VA evidence. The Board next considered SAFPC’s 20% rating under code 8721 (neuralgia, common peroneal nerve). SAFPC appears to have arrived at this coding approach in a somewhat convoluted manner. The IPEB coded the ankle pain condition 5271, rated 10% for “moderate” limitation of motion. Upon appeal the FBEB first coded the ankle pain condition 8730 (neuralgia of the ilio-inguinal nerve) rated 10%. This rating is not possible IAW VASRD §4.124 which allows a maximum rating of 0% under this code. The highest rating possible under the SAFPC applied 8721 code is 20%. The action officer could find no evidence in either the MEB or VA exams, or in the service treatment record (STR), to suggest that the CI’s pain had a neurogenic etiology; and, in fact found ample evidence of an arthrogenic etiology with documented painful motion of the ankle joint. Finally, members discussed a rating under code 5262 (tibia and fibula, impairment of). A rating higher than 20% under this code (for “moderate” ankle disability) would require a characterization of the ankle disability as “marked.” With the modest ROM limitation, normal gait and reasonably intact functionality of the joint, all members agreed that the “marked” 30% rating was not supported under 5262. 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 SAFPC adjudication for the right ankle condition since the applied code achieved the maximal rating allowed by the VASRD.

Contended Mental Health Condition. The CI first presented to behavioral health seven months prior to separation, and was diagnosed with “pain condition associated with psychological factors.” He attended a stress management group regularly; but, he exhibited no acute psychiatric symptoms, had normal mental status exams except for occasional depressed mood, and was not prescribed psychotherapeutic medications. There was no psychiatric profile, and the commander’s statement implicated only the physical limitations. The VA evidence confirms that the CI was fully employed soon after separation. The mental health condition was reviewed by the action officer and considered by the Board. There was no evidence for concluding that this mental health condition interfered with duty performance to a degree that could be argued as unfitting. The Board determined therefore that this condition was not subject to Service disability rating.

Remaining Conditions. No other conditions were noted in the NARSUM, identified by the CI on the MEB physical or found elsewhere in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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 §4.124a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended mental health condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional rating at separation. The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

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 20110721, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans' Affairs Treatment Record

XXXXXXXXXXXXX

President Physical Disability Board of Review

SAF/MRB

1500 West Perimeter Road, Suite 3700

Joint Base Andrews MD 20762

Dear XXXXXXXX

Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2011-00529

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate. Accordingly, the Board recommended no re-characterization or modification of your separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board. I concur with that finding and their conclusion that re-characterization of your separation is not warranted. Accordingly, I accept their recommendation that your application be denied.

Sincerely,

XXXXXXXXXXXXX

Director

Air Force Review Boards Agency

Attachment:

Record of Proceedings