RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2011-00568
BRANCH OF SERVICE:  Navy	BOARD DATE:  20140403
DATE OF PLACEMENT ON TDRL:  20001031
Date of Permanent SEPARATION:  20030305 (Formalization of Findings; Orders Unavailable)

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty IT3/E-4 (IT3/Information Technologist 3rd Class) medically separated for a left ankle condition.  He was involved in a motor vehicular accident (MVA) in October 1999, sustaining multiple lower extremity and right orbital fractures.  He underwent surgical procedures and post-operative therapy, but the conditions could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards; and, he was referred for a Medical Evaluation Board (MEB).  Left ankle, right lower leg and right orbital conditions (“left open type II talus fracture,” “right open type grade III-A tibial and fibular fracture” and “right eye orbital blowout fracture”) were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded four other conditions (“right eye periorbital cicatrix.” “right eye exposure keratopathy,” “rupture, left talofibular and calcaneofibular ligaments” and “rupture, left peroneus longus and brevis tendons”) for PEB adjudication. The initial PEB met on 13 September 2000 and adjudicated the right tibia/fibula”, left ankle talus and right orbital conditions as separately unfitting, rated 10% each; the associated ligament and tendon injuries of the left ankle were adjudicated as Category II (conditions that contribute to the unfitting condition) and the two eye conditions were adjudicated as Category III (conditions that are not separately unfitting and do not contribute to the unfitting condition).  The CI was placed on the Temporary Disability Retirement List (TDRL) with a combined disability rating of 30%.  The end-TDRL PEB met on 2 February 2003 and adjudicated only the left ankle condition as unfitting, rated 10%.  The right tibia/fibula and right orbital conditions were adjudicated as Category III; and, the Category II conditions (ankle ligament/tendon) were unchanged.  The CI accepted these findings on 5 March 2003 and was subsequently medically separated.

CI CONTENTION:  “I believe my disabilities were not rated correctly.  Unable to work due to service-connected disabilities.”

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 ratings for the unfitting left ankle condition are addressed below.  The right tibia/fibula, right orbital and left ankle tendon/ligament conditions are also within the DoDI 6040.44 defined purview of the Board and are likewise addressed below.  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 Naval Records.

TDRL RATING COMPARISON:

Service IPEB – Dated 20030129	VA – Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
IPEB (TDRL Entry) 20000913		TDRL	Sep.					
Residuals, Fractures, Right Tibia/Fibula	5299-5262	10%	Cat III	Residuals, Fractures, Right  Tibia/Fibula	5299-5262	0%	STR	
Residuals, Fracture, Left Ankle	5272	10%	10%	Residuals, Left Ankle Fracture w/ Ligament and Tendon Repairs	5003-5271	10%*	STR	
Residuals, Rupture, L Ankle Ligaments	Cat II	Cat II					
Residuals ,Rupture, L  Ankle Tendons	Cat II	Cat II					
Right Orbital Fracture	6009	10%	Cat III	Residuals, Right Orbital Fracture	6009	0%	STR	
Exposure  Keratopathy , Right Eye	Cat III	Cat III	No VA Entry	STR	
Periorbital Cicatrix, Right Eye	Cat III	Cat III	Lagophthalmos, Right Eye	6022	10%	STR	
              No Additional MEB/PEB Entries	Other x 3	STR	
Combined:  30% → 10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20030429 (most proximate to date of separation [DOS]).
* Increased to 20% (code 5010-5271) effective 20020515 (mid-TDRL) via appeal dated 20120229. 

ANALYSIS SUMMARY:  All of the CI’s injuries resulted from a single car MVA (line of duty) on 2 October 1999; he was a restrained passenger with driver fatality.  He underwent initial stabilization and emergent orthopedic surgeries (orbit, right leg, left ankle) at the local civilian hospital and was transferred to the nearest Naval Hospital (Bremerton, WA) on 9 October.  On 20 October he was transferred to a regional VA Hospital (Tampa, FL) near his home, where he underwent an extended period of rehabilitation with outpatient follow-up and MEB proceedings at a near-by Naval Hospital (Jacksonville, FL).  The final TDRL evaluation was performed at Naval Hospital Yokosuka, Japan (reason unclear).

It is noted that the Board has no outpatient records during the MEB and TDRL period and no VA medical records during the period of TDRL.  Following permanent separation, there are no VA records in evidence until 2006 (3 years later, thus of little probative value).  After the appropriate requests, the Board is satisfied that no additional evidence can be expected and, recommendations will be based on the evidence at hand:  civilian hospital records following the trauma, VA outpatient records during treatment preceding the MEB, the narrative summary (NARSUM) and ophthalmology addendum from the Jacksonville MEB and the repeat NARSUM and ophthalmology addendum from Yokosuka.

Right Tibia/Fibula Condition.  The CI underwent wound debridement and intramedullary nailing (hardware fixation) of the tibia immediately following the MVA and required skin grafting post-operatively.  Civilian hospital notes reflect a stable course and he was non-weight bearing on transfer.  No Bremerton records are in evidence.  A progress note from the Tampa VA dated 20 October 1999 (a year preceding TDRL, with no subsequent probative VA notes available) documented, “No ROM [range-of-motion] right ankle, limited ROM left ankle right knee … decreased strength and ROM [bilaterally] … decreased mobility, decreased functional status in self care.”  The Jacksonville NARSUM (no Jacksonville outpatient notes) documented that there had been treatment with a bone stimulator for delayed healing of the tibia, with radiographic evidence of “slight improvement” since dynamization (loosening of fixation to allow compression and healing of bone shaft).  The physical examination documented that the extremity was neurovascularly intact; “right tibia has mild tenderness to palpation over the wound;” and, full ROM of the right knee and ankle.  The functional assessment (encompassing all lower extremity conditions) is excerpted below.
At the present time, the patient complains of daily lower extremity pain, most severe in the left ankle, with some pain in the right tibia shaft.  The patient has pain on a daily basis. He has increased pain with any weight bearing. He is a community ambulator with an antalgic gait.  He is unable to run or participate in any impact activities or any of the sports that he previously enjoyed.  He notes marked pain when he is required to be on his feet most of the day for work and he has some pain and popping remaining in the left ankle with range of motion.
The NARSUM documented that the CI had been placed on limited duty for 8 months commencing October 1999, which was extended in March 2000 for an additional 8 months.  The commander’s non-medical assessment (Jacksonville) recognized that the CI had been assigned for only 3 months and did not provide function-specific evidence.  It stated, “Due to his medical condition our ability to task him has been limited.  Although tasking is minimal, [CI]
completes every assignment.”

The TDRL re-evaluation from Yokosuka noted interim “multiple treatments with physical therapy and conservative treatment for his continued left ankle pain” and “daily lower extremity pain most severely in the left ankle”; but, did not comment on interim treatment or acuity of symptoms specific to the right leg condition.  The physical exam was limited to the following entry, “The right leg shows well-healed surgical scars with complete take of split-thickness skin graft.  This is dry and is nontender at the fracture site.”  It interpreted x-rays of the right tibia and fibula from September 2002 as “healed with no evidence of infection.”  The functional assessment (again subsuming as well the left ankle condition) mirrored language from the Jacksonville NARSUM:
His pain is increased with any weightbearing especially with prolonged standing.  He is a community ambulator with antalgic gait. He is unable to participate in any impact activities, and he is unable to perform work required, requiring him to stand on his feet. … He is unable to tolerate prolonged weightbearing on a daily basis.  He is unable to carry objects, crouch, squat or use ladders.  He is unable to participate in physical training programs and is limited by pain.
The Board directs attention to its recommendations based on the above evidence.  Both the Jacksonville PEB and VA (based on identical evidence) rated analogously under code 5262 (tibia and fibula, impairment of) and arrived at the same 10% rating for ‘slight’ knee or ankle disability.  Alternate ratings under this code are 20% for “moderate” knee or ankle disability and 30% for “marked” disability.  Members concurred that specific joint coding for the ankle or knee was not justified by the pathology or rating evidence and that the analogous 5262 code was thus the logical and most specific code for rating.  Regarding the TDRL rating, members deliberated if a higher rating was justified via 5299-5262.  Certainly the degree of total disability reflected at the time of TDRL placement cannot be fairly characterized as “slight,” although it is clear that the dominant contribution was from the left ankle condition.  Given that there was full ROM of contiguous joints and that limitations were due largely to the opposite extremity, members agreed that the PEB rating (in agreement with the VA determination) was fair.  After due deliberation, and mindful of VA Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s TDRL adjudication of the right tibia/fibula condition.

The Board’s main charge with respect to the adjudication of the right leg condition at final separation is an assessment of the fairness of the Yokosuka PEB’s determination that it was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  It is reasonable to conclude that the Jacksonville PEB’s fitness determination was predicated on the fact that the tibial fracture was clinically characterized as non-union going into TDRL.  It is clear from the Yokosuka NARSUM that the fracture was well healed at permanent separation and thus, logically concluded that the condition had improved to an extent that it would not have independently prohibited adequate performance within the CI’s rating.  It was argued, nevertheless, that the functional (performance based) limitations associated with the condition had not significantly changed over the course of TDRL; and, that logically if it were unfitting at the time of TDRL adjudication it should have remained so at the time of permanent adjudication.  After due deliberation in consideration of this issue, however, member consensus (based on the preponderance of evidence) was that there was insufficient support for recommending a change in the PEB’s fitness determination for the right tibia/fibula condition at permanent separation.
Left Ankle Condition (Including Associated Ligament/Tendon Injuries).  The MVA resulted in a comminuted open fracture (bone in fragments, exposed through skin) of the left talus (key weight bearing bone of the ankle) with disruption of tendons (peroneus longus and brevis) and ligaments (talofibular and calcaneofibular) as described in the MEB submissions.  The CI underwent emergent surgical reduction (alignment of fracture segments) and hardware fixation of the talus with repair of the tendons and ligaments.  Functional progress through the civilian and VA treatment is documented with the right leg narrative above.  The Jacksonville NARSUM documents arthroscopic revision in June 2000 (5 months pre-TDRL), consisting of removal of an offending hardware screw and notation of severe arthritic changes of the contiguous joint interfaces.  The NARSUM states, “Although slightly improved, he continued to have moderate left ankle pain following this procedure.”  The physical exam noted “moderate edema with healing … scars,” without tenderness or neurologic deficits.  The ROM evaluation documented 45 degrees (normal) plantar flexion, 0 degrees dorsiflexion, and “almost no” eversion or inversion; additionally documenting “pain with attempted subtalar [forefoot] motion” with “no appreciable subtalar motion.”  The functional assessment is encompassed in the Jacksonville NARSUM excerpted in the preceding topic.

The symptom acuity and functional limitations identified at the Yokosuka TDRL re-evaluation are likewise encompassed by the associated excerpt in the preceding topic.  The physical exam documented, “The left foot shows palpable crepitation in the ankle with 0 degrees of dorsiflexion and 10 degrees of plantar flexion with pain.  The patient has pain with minimally appreciable subtalar motion.”  The September 2002 x-rays showed “severe … osteoarthritic changes of the left ankle.”

The Board directs attention to its recommendations based on the above evidence.  The PEB’s rating (both TDRL and permanent) was under code 5272 (subastragalar or tarsal joint, ankylosis) which recognized the absence of any mobility of the tarsal joint itself, although total joint mobility at the ankle is not dependent solely on articulation at the talus.  Code 5272 offers a 10% rating for ankylosis in good weight-bearing position and 20% for poor position.  Strictly speaking, 5272 is a clinically precise code for the pathology and the 10% description is appropriate to the evidence; but, logically there was overall joint damage and disability not fully captured by the code.  The associated and inextricable ligament and tendon injury (PEB Category II) contributed to ankle disability and was subsumed in the VA’s rating option.  The latter was under code 5271 (ankle, limited motion) which confers a 10% rating for “moderate” limitation and a 20% rating for “marked” limitation.  The VA, considering the ROM evidence from the Service, initially assigned a 10% rating; but, on subsequent court appeal (see rating chart footnote) and invoking no new evidence, the rating was raised to 20% for marked limitation.  An additional route to rating which was considered by the Board was code 5299-5262 (identical to right leg code) which would analogously capture ankle disability on the slight, moderate and marked scale as elaborated above.  Members agreed, however, that the lack of any long bone pathology was too great an obstacle for justifying analogous application of that code.  Having considered all of the above options for rating, members agreed that the fairest consideration would be under 5299-5271; which would appropriately subsume the contribution of the Category II conditions to disability.

Since full plantar flexion was preserved at the time of TDRL entry, members agreed that a 10% rating under 5271 (as per the VA) was appropriate.  The end-TDRL evidence, however, confirms the development of severe arthritis and significantly reduced plantar flexion, along with severely reduced ROM in the other planes.  The persistently antalgic gait and significant physical limitations are ascribed primarily to the left ankle condition, a factor which must also be reflected in an analogous 5271 rating.  Members thus agreed that “marked” limitation is an accurate and fair characterization for the permanent rating.  After due deliberation, considering all of the evidence and incorporating reasonable doubt, the Board recommends a TDRL rating of 10% and a permanent disability rating of 20%  for the left ankle condition under code 5299-5271.

Right Orbital Fracture (Including Associated Eye Conditions).  A right orbital floor (blowout) fracture was sustained in the MVA and surgically repaired emergently (synthetic graft required).  There were also associated periorbital and lid lacerations requiring plastic closure, but no ocular injury.  The ophthalmology addendum to the pre-TDRL NARSUM noted “multiple hypertrophic scars [cicatrix] of the brow, right temporal area, and right zygomatic [cheek bone] area … well healed full-thickness skin graft in the right upper lid and 2 millimeters of lagophthalmos [failure of full lid closure].”  Visual acuity, eye motion and eye structures were all normal.  It was noted that previous exposure keratopathy (corneal irritation/infection due to the lagophthalmos) had resolved.  The end-TDRL ophthalmology addendum documented a follow-up examination on 11 September 2002 (6 months prior to medical separation) and repeated the findings from the Jacksonville addendum, although not commenting on lagophthalmos.  The examiner endorsed the prior diagnoses and stated that the keratopathy had resolved.  Post-separation VA records (3+ years after permanent separation) indicate that mild lagophthalmos with intermittent keratopathy (mild, uncomplicated) had remained a chronic issue, however.

The Board directs attention to its recommendations based on the above evidence.  It is unclear why the orbital fracture itself was considered unfitting at the time of TDRL placement, although it might be speculated that it was leveraged to justify the requisite 30% rating for TDRL placement (indicated since the extremity conditions had not stabilized) or that the orbital condition was not itself considered stable at the time.  Given the lack of any functional visual/ocular impairment, the only issue with significant functional impact would appear to have been the lid dysfunction posing the risk of recurrent keratopathy.  Firm Board precedence, however, dictates that the favorable fitness determination at the time of temporary retirement must be conceded.  The PEB’s TDRL rating of 10% under code 6009 (unhealed eye injury) was also a concession, since 6009 rating is based on duration of incapacitating episodes and there is no documentation (at least available to the Board) of episodes which meet the VASRD §4.79 definition of incapacitation (provider directed bed rest).  There are no VASRD codes for facial fractures above the maxilla, thus the 6009 code is the only one which may be logically considered for rating.  It is noted that the VA conferred a 0% rating under 6009 for the orbital fracture.  The final PEB determination that the orbital fracture was no longer unfitting might be challenged on the basis that nothing had really changed; but, members agreed that there was no performance based evidence or clinical rationale to support a conclusion that the condition was unfitting.  Likewise the associated ocular conditions (keratopathy and periorbital cicatrix) cannot be supported as unfitting at the time of TDRL placement or final separation.  After due deliberation in consideration of the preponderance of the evidence (deferring to reasonable doubt for rating assessment), the Board concluded that there was insufficient cause to recommend a change in the PEB rating and fitness determinations for the orbital and associated ocular conditions at TDRL and final separation.

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 tibia/fibula condition and IAW VASRD §4.71a, the Board by a vote of 2:1 recommends no change in the PEB rating and fitness adjudications for the period of temporary retirement or permanently.  The single voter for dissent did not elect to submit a minority opinion.  In the matter of the left ankle condition (subsuming left talofibular and calcaneofibular ligament and left peroneus longus and brevis tendon injuries), the Board unanimously recommends a permanent disability rating of 20%, coded 5299-5271 IAW VASRD §4.71a.  In the matter of the right orbital condition with associated keratopathy and periorbital cicatrix of the right eye, (subsuming left talofibular and calcaneofibular ligament and left peroneus longus and brevis tendon injuries), the Board unanimously recommends no change in the PEB rating and fitness adjudications.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified to reflect a permanent 20% rating effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Residuals, Fractures, Right Tibia/Fibula	5299-5262	10%	Cat III	
Residuals, Fracture, Left Ankle (Subsuming Left Talofibular and Calcaneofibular Ligament and Left Peroneus Longus and Brevis Tendon Injuries)	5299-5271	10%	20%	
Right Orbital Fracture	6009	10%	Cat III	
Exposure Keratopathy, Right Eye	Cat III	Cat III	
Periorbital Cicatrix, Right Eye	Cat III	Cat III	
COMBINED	30%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110801, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: 	(a) DoDI 6040.44
(b) PDBR ltr dtd 1 Sep 14 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 1 Jul 14 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 12 Aug 14 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a.	XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20% (increased from 10%) effective the date of member’s discharge.

b. XXXXXXXXXXXXXXXXXXXX, former USMC:  Disability separation with a final disability rating of 20% (increased from 10%) effective the date of member’s discharge.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20% (increased from 10%) effective the date of member’s discharge. 

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.