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AF | PDBR | CY2012 | PD-2012-00144
Original file (PD-2012-00144.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2012-00144
BRANCH OF SERVICE: Army  BOARD DATE: 20150204
SEPARATION DATE: 20090115


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (13B/Artilleryman) medically separated for a left ankle condition. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Left ankle osteoarthritis, characterized as not meeting retention standards, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded a near-sighted condition as meeting retention standards. The Informal PEB adjudicated “left ankle pain” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining condition was determined to be not unfittin g. The CI made no appeals and was medically separated.


CI CONTENTION: “Received 10% per ankle for degenerative arthritis which gave me a combined rating of 20%. After discharged it was determined that I had a hiatal hernia and irritable bowel syndrome by the VA where I gained an additional 10% service connected disability. Since the Military and the VA use the same standards, I should have received a 30% rating from the military upon discharge which would have qualified me for a retirement.”

His complete submission is at Exhibit A.


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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting left ankle condition is addressed below. The nearsighted condition, identified as not unfitting by the PEB, was not requested for review and is not within the DoDI 6040.44 defined purview of the Board. The requested right ankle, hiatal hernia and irritable bowel syndrome conditions were not identified and adjudicated by the PEB, and thus are not within the defined purview of the Board. Those or any condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

IPEB – Dated 20081215
 VA* (~4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Left Ankle Pain 5003 10% Degenerative Arthritis, Left Ankle 5003-5271 10% 20090501
Other x 0 (Not In Scope)
 Other x 4
RATING: 10%
 RATING: 20%
* Derived from VA Rating Decision (VA RD ) dated 20 090630



ANALYSIS SUMMARY :

Left Ankle Condition. The narrative summary (NARSUM) relates a history of chronic bilateral ankle pain with multiple prior sprains. The earliest probative entries in the available service treatment record (STR) are for treatment after medical evacuation from Kuwait in February 2008 (11 months prior to separation) for ankle pain (primarily right). Initial treatment was directed at the right ankle, but left ankle complaints and treatment for a bilateral condition are well evidenced. An X-ray showed moderate degenerative changes (osteoarthritis) of the left ankle (right ankle was normal). An antalgic gait was noted in an early STR note, but a normal gait is documented in later (numerous) entries. Formal range-of-motion measurements for the MEB were obtained by physical therapy on 30 September 2008 (4 months prior to separation), and recorded left ankle plantar flexion of 5 degrees (normal 20) and plantar flexion of 35 degrees (normal 45). There is no STR evidence of objective instability or incapacitation.

The NARSUM conducted on 13 November 2008 (2 months prior to separation) noted “chronic bilateral ankle pain ... left is a lot worse than the right ... with activity and long periods of standing and instability on uneven ground.” The physical exam noted joint tenderness but stability to stress testing; and, measured ROM was 10 degrees dorsiflexion and 25 degrees plantar flexion.

A VA Compensation and Pension (C&P) examination was conducted on 1 May 2009 (4 months after separation); and, did not differentiate symptoms and limitations for the left versus the right ankle (although a VA provider a month later documented “left ankle mostly affected”). Overall pain was characterized as “constant” rated 3/10 with exacerbations to 8/10 by “prolonged standing, walking.” The VA physical exam did not comment on gait, although normal gait is documented in various contemporary VA outpatient notes. The C&P exam noted edema, but no tenderness or other positive findings; and, measured ROM was 20 degrees dorsiflexion and 40 degrees plantar flexion.

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s 10% rating under 5003 (degenerative arthritis) cited the NARSUM ROM evidence and conceded painful motion. The VA’s 10% rating under 5271 (limited motion, ankle) did likewise. The 5271 code confers a 10% rating for “moderate” and 20% for “marked” limitation. Although the MEB PT flexion of 5 degrees (25% of normal) might be argued as “marked”; this, isolated evidence cannot reasonably outweigh the preponderance of ROM evidence. No criterion is supported by the evidence which would satisfy a rating higher than 10% under any alternative code available IAW VASRD §4.71a. 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.


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. 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 disabil ity and separation determination.
The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120131, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record







XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150006391 (PD201200144)

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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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