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AF | PDBR | CY2013 | PD-2013-02823
Original file (PD-2013-02823.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-02823
BRANCH OF SERVICE: Army  BOARD DATE: 20150406
SEPARATION DATE: 20060804


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve O-3 (Ordnance Officer) medically separated for right ankle pain. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The “right ankle pain and limited range of motion status-post open reduction-internal fixation secondary to lateral malleolar fracture” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB adjudicated “right ankle pain, status post-operative fixation of ankle fracture” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI appealed the PEB, reconsideration from the US Army Physical Disability Agency affirmed the PEB finding and rating, and was medically separated.


CI CONTENTION: “Right ankle fracture of the tibia and fibula, with post-operative residual and DJD. Hypertension Chronic Migraines.”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Reconsideration – Dated 20060421
 VA* - (~4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Right Ankle Pain… 5271 20% Post-Operative Residuals of Right Ankle Fracture with Degenerative Joint Disease 5010-5271 20% 20061118
Other x 0
Other x 3
RATING: 20%
 RATING: 50%
* Derived from VA Rating Decision (VA RD ) dated 200 61221 (most proximate to date of separation [ DOS ] ) . NOTE: VASRD dated 20070828 noted the VA rated the CI’s ankle scar at 10% coded 7804, based on the 20061118 exam.

ANALYSIS SUMMARY:

Right Ankle Condition. The narrative summary (NARSUM) and treatment record noted the CI had traumatic right ankle fracture and dislocation in 2005. He underwent surgical repair (an open reduction with internal fixation (ORIF)] in January 2005; and due to continued pain and limited motion he underwent surgical removal of hardware in February 2006. Although the MEB and NARSUM exams were accomplished prior to the second (hardware removal) surgery, an exam in April 2006, responding to the PEB’s request for clarification, documented ankle range of motion (ROM) limited to minus 20 degrees of dorsiflexion (“… that means that at neutral position patient keeps foot on plantar flexion similar to a drop foot”). Civilian physician note dated May 2006 documented right ankle stiffness and swelling (edema); reduced movement to minus 20 degrees dorsiflexion (normal is plus 20) and 40 degrees of plantar flexion (normal is 45); and radiographic evidence of narrowed ankle joint space.

At the VA Compensation and Pension (C&P) exam performed four months after separation, the CI reported continued use of a physician prescribed cane and difficult shoe wear due to ankle swelling. He did not wear a brace and stated that his surgery scars were significantly tender to palpation and also led to some difficulty with shoe wear along the bottom of his scar. Exam documented an 8 cm well healed scar on the lateral ankle with some tenderness to palpation. There was tenderness along the outside ankle ligament and front of the ankle joint with some ankle swelling compared to the opposite side. ROM was dorsiflexion 4 degrees (normal 20) and plantar flexion 35 degrees (normal 45) without decrease or further impairment on repetition.

The Board directed its attention to its rating recommendation based on the above evidence. Both the FPEB and VA rated the ankle at 20% using the criteria from disability code 5271 for limitation of ankle motion. The awarded 20% (marked) is the highest rating available under limited ankle motion. There was no evidence of ankylosis (a frozen joint), or functional loss of the ankle that would more nearly approximate actual loss of use of the foot for any higher rating.

The Board next considered if the ankle scar, as a residual of the ankle surgeries, was separately ratable. The profile, commander’s statement, and NARSUM addressed ankle pain as duty limiting with general limitations of running, walking and activity limitation. There was no military footwear restriction on the profile; however, the CI was likely still using crutches, which were not noted on the profile. The MEB and PEB addressed limitations to ROM. Any impact of the ankle scars on ROM is considered under the ROM rating under 5271. The VA exam noted specific complaints of added pain with wearing shoes due to his scar and an objective tender scar. The Board considered the CI’s hardware removal surgery was 3 months prior to separation and the CI was still walking with a cane at the 4 month post-separation VA exam. Although the ankle scar may have potentially led to military footwear restriction or additional duty limitation, there was scant evidence following the CI’s second surgery. The Board considered that there was not a preponderance of evidence that the ankle scar caused significant duty limitation beyond that noted in the ankle ROM limitation rating. The Board concluded therefore that the ankle scar condition could not be recommended for additional disability rating.

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 right 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 right 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 disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131217, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record






XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXXXXXXX, AR20150012772 (PD201302823)


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

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