RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1200444 SEPARATION DATE: 20040429 

BOARD DATE: 20130320 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an activated National Guard SGT/E-5 (31B20/Military Police), 
medically separated for right ankle pain; common peroneal partial neuritis, moderate. The CI 
incurred a right ankle injury in 1993; requiring surgery. Pain increased while deployed in 2003. 
The CI did not improve adequately with treatment 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). Right ankle pain, 
depression and polysubstance abuse in remission, identified in the rating chart below, were 
also identified and forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the 
right ankle pain; common peroneal partial neuritis, moderate condition as unfitting, rated 20%. 
The remaining depression and polysubstance abuse (in remission) conditions were determined 
to be not unfitting and therefore not ratable. The CI made no appeals, and was medically 
separated with a 20% disability rating. 

 

 

CI CONTENTION: “At the time of my PEB I was found to be rated at 20% and unfit for duty. My 
doctor at Ft. Knox, KY suggested that I appeal the decision and that I stood an excellent chance 
of getting it moved to 40% + and medically retired. When I inquired about the length of this he 
told me I was looking at another 3 to 5 months. I declined and regrettably did not appeal. My 
underlying reason for not staying is the fact that I had been DEPLOYED for 25 out of 29 months. 
I had an 8 month old daughter when I was first deployed and was currently over 3yrs old. I also 
had a 7yr old son and a 5 yr. old daughter. During the first deployment my wife had an affair or 
two and I just wanted to get home to my kids. If you look at the cases from 2003-2004 I think 
you will find very few service personnel were medically retired. I was also in treatment for 
PTSD which was/is an even more severe situation for me. I was placed in lOP therapy at 
Timbroek in Louisville. I could not go home for leave nor begin the PEB process for my injuries. 
I soon figured out what they wanted to hear and gave it to them. I was then allowed to take 
leave and begin the PEB process. The PEB rated that at 0%. On or about 29JUL2011 the 
military entered into a settlement of a class action lawsuit in response to the military's 
treatment of PTSD during 2001-2008. I feel that my family and I were grossly mishandled in this 
process and I respectfully request that you take a look at my records again. CPT C--- had 
written several addendum to the documentation hoping to further clarify the situation 
concerning my nerve damage. The VA has pulled out several different issues and treat them as 
separate: rt. peroneal nerve; rt. sural nerve; scar pain and degenerative joint disease. I have 
pain on the bottom of my foot, where my arch should be. The EMG/Nerve conduction test 
showed absent sensory response of the peroneal nerve and prolonged distal sensory latency of 
the sural nerve. It is mostly an annoying pain, but the longer I am on my feet, the more intense 
the pain.” sic 

 

 

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in 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.” The ratings 
for unfitting conditions will be reviewed in all cases. The depression condition requested for 
consideration (requested as posttraumatic stress disorder [PTSD]) and the unfitting right ankle 
pain; common peroneal partial neuritis; including right peroneal nerve, right sural nerve, 
conditions meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly 
addressed below. The remaining conditions rated by the VA at separation and listed on the DD 
Form 294 are not within the Board’s purview. 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 Army Board for Correction of Military Records. 

 

 

RATING COMPARISON: 

 

Service IPEB – Dated 20040402 

VA (~1 Mo. Post-Separation) – All Effective Date 20040430* 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Right Ankle Pain; Common 
Peroneal Partial Neuritis, 
Moderate 

8621 

20% 

Common Peroneal Partial Neuritis 

8621 

10% 

STR 

Residuals, Fractured Right Medial 
Malleous 

5010-5271 

20%** 

 

Depression NOS 

Not Unfitting 

PTSD with Depression 

9411 

50% 

20050614 

Polysubstance Abuse in 
Remission 

Not Unfitting 

No VA Entry 

.No Additional MEB/PEB Entries. 

 

 

Combined: 20% 

Combined: 60% 



*VA rating decision 20050714 

**Residuals right ankle fracture 10% from 19950904, 20% from 19970905. 

 

 

ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit 
and vital fighting force. While the DES considers all of the member's medical conditions, 
compensation can only be offered for those medical conditions that cut short a member’s 
career, and then only to the degree of severity present at the time of final disposition. The DES 
has neither the role nor the authority to compensate members for anticipated future severity 
or potential complications of conditions resulting in medical separation nor for conditions 
determined to be service-connected by the Department of Veteran Affairs (DVA) but not 
determined to be unfitting by the PEB. However the 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. The Board’s role is 
confined to the review of medical records and all evidence at hand to assess the fairness of PEB 
rating determinations, compared to Veterans Affairs Schedule for Rating Decisions (VASRD) 
standards, based on severity at the time of separation. 

 

Right Ankle Pain; Common Peroneal Partial Neuritis, Moderate Condition. The CI sustained a 
right ankle injury in 1993, during a parachute jump sustaining a fracture of the distal one third 
of the tibia, a medial maleolar fracture and a complete dislocation of the talus, ankle joint. He 
subsequently underwent surgery with internal fixation of the fracture, recuperated well and 
had the hardware used in surgery removed two years later. The VA granted a service-
connected rating for the right ankle condition effective 14 September 1995 at 10%, increased to 
20% effective 5 September 1997. The CI served on extended active duty from October 2001 to 
October 2002. A May 2002 podiatry evaluation noted chronic right ankle pain with decreased 
sensation. The CI was called to active duty in February 2003 and deployed to Iraq for Operation 


Enduring Freedom. Following return in November 2003 complaints of persistent right ankle 
pain prompted medical evaluation and subsequent referral for MEB. The narrative summary 
(NARSUM) physical exam from 28 January 2004, 3 months prior to separation, noted a well 
healed scar over the dorsal aspect of the right foot and full active range-of-motion (ROM). 
There was weakness of ankle movement. There was no bruising or swelling. A NARSUM 
addendum 15 March 2004 noted hypersensitivity to touch of the surgical scar. Nerve 
conduction studies evidenced absent sensory response of the right superficial peroneal nerve 
and prolonged sensory latency of the right sural nerve with a final diagnostic of common 
peroneal partial neuritis. The X-ray exam from January 2004 evidenced early degenerative joint 
disease (DJD) in the right ankle. The MEB psychiatry examination noted the CI used pain 
medication for the ankle sporadically. There was no VA Compensation and Pension 
examination conducted proximate to separation. 

 

The Board directs attention to its rating recommendation based on the above evidence. The 
unfitting condition was right ankle pain interfering with strenuous use. There was mild 
degenerative arthritis present on X-rays, and evidence of a neuritis causing pain and weakness 
of the right ankle. The PEB rated the CI’s right ankle pain condition 20% considering moderate 
common peroneal partial neuritis, code 8621. The Board agreed this rating approach captured 
the overall right ankle impairment. The Board also considered whether a higher rating was 
supported under other diagnostic code options. There was no ankylosis or moderate limitation 
of motion to support a minimum rating under the respective codes (5270 and 5271). The Board 
noted the underlying cause for the right foot impairment was residuals of a fracture of the 
fibula and medial maleolus and considered rating using the VASRD diagnostic code 5262 
(impairment of the tibia and fibula and ankle), however all members rating under this code 
would result in no higher than 20% for moderate ankle impairment providing no benefit to the 
CI. The Board noted the VA granted separate ratings for neuritis and residuals of fracture. 
However, the unfitting condition was right ankle pain a separate rating would be based on the 
same impairment used to adjudicate a rating under the nerve code used by the PEB and is 
prohibited by §4.14 (Avoidance of pyramiding). Similarly, any impairment from scar pain was 
also considered under the neuritis code and a separate rating for pain in this area would be 
based on the same impairment that is rated under the nerve code and is prohibited by §4.14 
(Avoidance of pyramiding). The loss of sensation due to the nerve injury was not unfitting for 
service. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 
(Resolution of reasonable doubt), the Board concluded that there was insufficient cause to 
recommend a change in the PEB adjudication for the right ankle pain condition. 

 

Contended PEB Conditions. The CI contends for PTSD and the Board concludes this is inclusive 
of the mental condition considered by the PEB. The contended conditions adjudicated as not 
unfitting by the PEB were depression not otherwise specified and poly-substance abuse in 
remission. The Board’s first charge with respect to these conditions is an assessment of the 
appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness 
determinations is higher than the VASRD §4.3 (Resolution of reasonable doubt) standard used 
for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” 
standard. The CI developed symptoms of anxiety and depression associated with multiple 
stressors while deployed to Iraq. His symptoms were accompanied by a recurrence of alcohol 
abuse and abuse of medications. Intensive outpatient treatment resulted in remission of 
alcohol and substance abuse. At the time of the MEB psychiatry NARSUM, 20 February 2004, 
there were residual symptoms of depression and anxiety associated with a lifestyle change due 
to the ankle injury, financial stress and family stress. The Non-Commissioned Officer Evaluation 
Report (NCOER) ending December 2003 stated the CI performed all tasks beyond standard and 
had the knowledge, skills and abilities equal to or greater than peers and superiors. The NCOER 


noted the CI’s lack of desire to continue serving in the Army National Guard had not affected his 
performance. The commander’s letter, 17 February 2004, also reported the CI had done an 
excellent job working with staff in a variety administrative tasks. 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 the contended 
mental health conditions and therefore, no additional disability ratings can be recommended. 

 

 

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; common peroneal partial neuritis 
condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB 
adjudication. In the matter of the contended depression and polysubstance abuse in remission 
conditions, the Board unanimously recommends no change from the PEB determination as 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 recharacterization of 
the CI’s disability and separation determination, as follows: 

 

UNFITTING CONDITION 

VASRD CODE 

RATING 

Right Ankle Pain; Common Peroneal Partial Neuritis, 

8621 

20% 

COMBINED 

20% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120521, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 xxxxxxxxxxxxxxxxxxxxxx, DAF 

 Director of Operations 

 Physical Disability Board of Review 

 


SFMR-RB 


 

 

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

(TAPD-ZB / xxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 

 

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for 
xxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130008371 (PD201200444) 

 

 

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 xxxxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)