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AF | PDBR | CY2013 | PD2013 00413
Original file (PD2013 00413.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD1300413
BRANCH OF SERVICE: Army  BOARD DATE: 20140225
Date of SEPARATION: 20050924


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B2P/Infantryman) medically separated for a right ankle condition. In July 2003, he stepped in a hole while running and fractured his right distal tibia and fibula and underwent a surgical repair. That December, he fractured his right distal fibula again and sustained an additional stress fracture of the right distal tibia. 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). The right ankle condition, characterized as “chronic right ankle pain traumatic arthritis s/p ORIF” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as medically unacceptable. No other conditions were submitted by the MEB. The Informal PEB adjudicated the right ankle condition as unfitting, rated 20%. The CI made no appeals and was medically separated.


CI CONTENTION: “Only one condition was listed that rendered me unfit, when there were at a minimum 4 conditions that would have rendered me unfit. The right ankle arthritis was the condition the DOD listed, but the VA evaluated and gave ratings for 12 conditions. The four that would have resulted in my being unfit are as follows with their corresponding VA ratings: right ankle arthritis 20%, arthritis left knee 10%, arthritis right knee 10%, and lower back pain 10%. All of these were either caused by or aggravated by the right ankle condition due to an altered gait. This association was referenced in the VA award letter. Any one of these could have rendered me unfit, but collectively they most certainly rendered me unfit; however, only one was evaluated by the DOD. I feel that an additional disability rating for the right ankle condition should have been higher due to the additional disability manifested by a limitation of motion, a restriction of activity, and functional impairment caused by pain during periods of flare-up, and when the ankle is used repeatedly over a period of time.”


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 right ankle condition is addressed below. In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process. Since the CI responded to this mailing, it is presumed that he has elected review by the PDBR for the MH condition although he did not specifically contend for it on the DD Form 294. In accordance with Secretary of Defense directive for a comprehensive review of the MH diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of the unfitting MH diagnoses in accordance with VA Schedule for Rating Disabilities (VASRD) §4.129 and §4.130. The requested arthritis left knee, arthritis right knee and lower back pain conditions were not identified by the PEB, and thus are not within the DoDI 6040.44 defined purview of the Board; no additional conditions are within the DoDI 6040.44 defined purview of the Board.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that 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. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. 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 Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20050804
 VA - (4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Pain & Decreased ROM in Rt Ankle Secondary to Fractures Rt Ankle 2003 & 2004 5271 20% Condition to Account for Rt Ankle Pain 5271 20% 20060130
No Additional MEB/PEB Entries
 Other x 11 20060130
Combined: 20%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 6 0228 ( most proximate to date of separation [ DOS ] )


ANALYSIS SUMMARY:

Right Ankle Condition. In July 2003, the CI stepped into a fence post hole and twisted his ankle with a resultant fracture of the ankle. This was treated with surgery and rehabilitation and he was able to return to return to duty although he was never pain free. On a night patrol in February 2004, he again fractured the ankle and was treated with a controlled ankle movement boot. His symptoms improved, but he did not improve sufficiently to return to full duties as an infantryman. The MEB orthopedic narrative summary (NARSUM) documented that the CI continued to use an ankle brace periodically and to lace his boots tightly. He took non-steroidal anti-inflammatory drugs (NSAIDs) for the discomfort. He was not able to run a significant distance due to pain. On examination, he reported tenderness on palpation of the incision sites and with extremes of dorsiflexion (toes up.) The range-of-motion (ROM) is below. X-rays showed post-operative changes, some degenerative changes, and 2mm displacement of the posterior fragment of the medial malleolus (inside ankle bone.) At the MEB examination on 16 June 2005, the CI reported continued ankle pain and arthritis. The MEB examiner noted lateral swelling, tenderness, and limited dorsiflexion. At the VA Compensation and Pension examination performed 4 months after separation, the CI reported that he avoided prolonged walking and running. He was a full-time student. The MH examination performed the same day also noted that he was working, selling mattresses. He walked with a slight limp and used an ankle brace which decreased his pain. He did not require a cane. He was tender to touch, but had no swelling, locking, giving way or instability. Neither atrophy nor weakness was present. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.
Right Ankle ROM
(Degrees)
 MEB (Ortho) ~ 6 Mo. Pre-Sep PT ~ 3 Mo. Pre-Sep VA C&P ~ 4 Mo. Post-Sep
Dorsiflexion (20 Normal)
 10 -5 ( -5/-5/-5 ) 10
Plantar Flexion (45)
 30 20 ( 20/20/20 ) 45 (pain after 35)
Comment
 Ankle stable, no anterior drawer or talar tilt, old surgical incisions Left ankle dorsiflexion 10; Plantar flexion 30; Inversion 35; and eversion 10. ROM limited by pain, severe tenderness lateral aspect, no effusion, no muscle atrophy, no weakness, no instability, walks w/ small limp, wears ankle brace
§4.71a Rating
 10 % 20 % 10 %

The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA both coded the ankle condition 5271, limited ankle motion and rated it at 20% for marked loss, the highest rating available under this coding option. In the absence of instability or ankylosis (fusion of the bones), no other coding option provided an advantage to the CI for rating purposes. 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 right ankle condition.

Contended PEB Conditions. As the CI submitted his application in response to the US Army mailing regarding MH conditions, the Board presumes an implied contention for the MH condition. The NARSUM included both posttraumatic stress disorder and Tourette’s disorder as diagnoses. Neither was implicated in the commander’s statement nor judged to fail retention standards. While the MEB psychiatrist recommended an S2 profile, there is no evidence that the CI carried any psychiatric profile other than S1 during his career. The psychiatrist did note that neither condition was medically disqualifying. Both were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance. Neither was forwarded by the MEB nor considered by the PEB for adjudication. 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 either of the implied contended conditions and so no additional disability ratings are recommended. The Board also considered the appropriateness of the changes in the mental health diagnoses. The MEB did not forward a MH diagnoses nor did the PEB adjudicate one. The Board determined that no MH diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process. This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.


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. In the matter of the (implied) contended MH conditions, the Board unanimously agrees that these were not unfitting and concluded therefore that they could not be recommended for additional disability rating. 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, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Pain & Decreased ROM in Right Ankle Secondary to Fractures Right Ankle 2003 & 2004 5271 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20 1 30513 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXX , DAF
President
Physical Disability Board of Review
SFMR-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 XXXXXXXXXXXXXXXXXXXXXX, AR20140007706 (PD201300413)


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                                                  XXXXXXXXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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