RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Army

CASE NUMBER: PD1100754 SEPARATION DATE: 20090820

BOARD DATE: 20120327

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (68W, Health Care Specialist) medically separated for a left ankle condition. The CI first experienced left ankle and foot pain after running in 2007. This persisted and was treated conservatively. He was then diagnosed with a subluxing peroneal tendon for which underwent a surgical repair in October 2008. The ankle could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was thus issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The left ankle condition, characterized as “left peroneal tendonitis, post surgical repair of the superior peroneal retinaculum and fibular groove deepening” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Lumbar spine and left knee conditions were also identified by the MEB, but forwarded as medically acceptable. No other conditions were submitted by the MEB; but, other conditions, contended or evidenced in the Disability Evaluation System (DES) file, are addressed below. The PEB adjudicated the left ankle condition as unfitting, rated 20%, citing criteria of the Veterans Administration Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals, and was medically separated with that disability rating.

CI CONTENTION: “Was only rated for one of many disabilities at final rating.” He in turn lists the VA conditions and ratings as per the chart below; and, a contention for service rating of all of them is implied by his statement.

RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests service ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the 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. However the Department of Veterans’ Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Left Ankle Condition. In June 2007, the CI first reported left ankle and foot pain that would appear after running; and, the complaint worsened over time. Podiatry noted that the CI had pain at the dorsal-lateral aspect of the left foot and lateral left ankle, and orthotics failed to relieve the pain. The podiatrists diagnosed the condition as peroneal tendonitis, and also made note of bilateral pes planus dating to childhood. In October 2008, the CI underwent surgical correction (repair of the superior peroneal retinaculum with fibular groove deepening); but, results were disappointing. At a podiatry follow up in January 2009, the CI reported worse pain at the lateral ankle and peroneal tendons than before the surgery. Physical therapy (PT), orthotics, various ankle boots and braces, and medications provided little further relief. There were three goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

*Under 5271 (ankle, limitation of motion) as ‘marked’ (20%) or ‘moderate’ (10%).

At the MEB exam, the CI reported constant pain rated 4/10; aggravated by standing, walking, or load bearing. It was noted that he used a cane for ambulation. By exam there was lateral tenderness and significantly impaired range-of-motion (ROM) which were limited by pain. The ROM limitations were corroborated by an earlier PT evaluation as charted above. At the post-separation VA Compensation & Pension (C&P) evaluation, the CI continued to report persistent pain with weakness and fatigability of the ankle. It was again noted that ambulation was assisted by a cane. VA ROM evaluation confirmed improved mobility with plantar flexion, although pain throughout all planes of motion was documented.

The Board directs attention to its rating recommendation based on the above evidence. Both the VA and the PEB rated under code 5271 (ankle, limitation of motion). This is the clinically appropriate and most favorable code; since other applicable joint codes or application of an analogous 5003 (degenerative arthritis) code would yield a maximum rating of 10%. Barring ankylosis (a frozen joint, clearly not present) the maximum achievable rating is the 20% conferred by the PEB for “marked” ROM limitation under 5271. The VA’s 10% rating under 5271 for “moderate” ROM limitation was justifiable considering the improvement in plantar flexion (the more functionally critical plane of motion). 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 left ankle condition.

Other PEB Conditions (Contended). The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were lumbar spine and left knee conditions. The narrative summary (NARSUM) related a 2 year history of back pain, stating “most of the time he is completely pain free.” The NARSUM also related a 1 year history of knee pain, stating “he is currently asymptomatic. Pain will only come on when doing vigorous physical activities.” Neither of these conditions was profiled, implicated in the commander’s statement or noted as failing retention standards. Both were reviewed by the action officer and considered by the Board. There was no indication from the record that either of these conditions significantly interfered with satisfactory duty performance. All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change in the PEB fitness adjudication for the lumbar spine or left knee conditions.

Other Contended Conditions. In addition to conditions already addressed, the CI’s application implies that compensable ratings should be considered for tinnitus, pes planus, a macular hole in right eye, and left ankle scar. None of these conditions were clinically active during the MEB period; none carried attached profiles; and, none were implicated in the commander’s statement. These conditions were reviewed by the action officer and considered by the Board. There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance. It was determined that none could be argued as unfitting and 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 core 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 left ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the lumbar spine and left knee conditions, the Board unanimously recommends no change from the PEB adjudications as not unfitting. In the matter of the contended tinnitus, pes planus, right eye, and left ankle scar conditions; the Board unanimously agrees that it cannot recommend any findings 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 20110908, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

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

Deputy Assistant Secretary

(Army Review Boards)