RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01762
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141021
SEPARATION DATE:  20040624

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-4 (OS/Operations Specialist) medically separated for a right foot condition.  This condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was referred for a Medical Evaluation Board (MEB) after an 8-month period on limited duty.  The right foot condition characterized as “ankylosis of joint, right fifth metatarsal tubercle nonunion” and “right ankle anterior impingement secondary to old injury” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated the “right fifth metatarsal tubercle nonunion” as unfitting and rated it 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II (contributing to unfit condition) as noted on the rating chart comparison below.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Swelling in foot, knee and back has only gotten worse over time no matter treatment or medication.”

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 right fifth metatarsal tubercle nonunion; along with the related right ankle anterior impingement, right ankle arthrofibrosis and continued Achilles tendon tightness conditions are addressed below.  The contended knee and back conditions are not within the DoDI 6040.44 defined purview of the Board.  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.

RATING COMPARISON:

Service IPEB – Dated 20040303	VA - (~1 week Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Fifth Metatarsal Tubercle Nonunion	5283	10%	Fifth Metatarsal Fracture Right Foot	5284	0%	20040630	
Right Ankle Anterior Impingement	CAT II	Ankle Sprain, Right	5271	10%	20040630	
Right Ankle Arthrofibrosis/Achilles Tendon Tightness	CAT II					
Other x0		
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20040902 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  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 Disability Evaluation System 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, operating under a different set of laws.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.

The Board will consider the unfitting right foot condition and the Category II right ankle condition together for its rating recommendations.  Both conditions are closely related anatomically, clinically and with regard to the disability picture.  Additionally, both conditions were evaluated together in all relevant medical documentation present for review.  In deference to §4.14 (avoidance of pyramiding), the Board’s final rating recommendation will be determined by the condition resulting in the highest rating IAW §4.7 (higher of two evaluations) that states, “Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.”

Right Fifth Metatarsal Tubercle Nonunion; Right Ankle Arthrofibrosis; Achilles Tightness Conditions.  The evidence documents that on 10 June 2003, the CI twisted his right ankle and foot while playing basketball.  He had fractured his fifth metatarsal tubercle and was casted for 5 weeks.  After the cast was removed, he continued to have right ankle and foot pain with continued swelling.  He was given non-steroidal anti-inflammatory medications and placed on light duty.  In spite of treatment, he continued to have right foot and ankle pain.  The narrative summary (NARSUM) prepared 7 months prior to separation documented that was evaluated first in the orthopedic clinic on 1 October 2003.  He was given a steroid injection in his right ankle that did not relieve his pain.  He then had a bone scan that revealed abnormal tracer uptake in the ankle and base of the fifth metatarsal.  A magnetic resonance imaging study revealed scar or granulation tissue at the lateral ankle ligaments (the primary radiology results documents were not available for Board review).  He was treated by physical therapy for increasing his range-of-motion (ROM) with no improvement in his swelling, pain and right foot discomfort.  A right-foot fifth-metatarsal nonunion was seen on X-ray and that was injected with local anesthetic medications resulting in a 60% relief of pain.  A surgical excision versus repair of this nonunion was offered to the CI, which he declined.  The physical exam findings are summarized in the chart below.  At the VA Compensation and Pension (C&P) exam performed a week after separation, contained the following excerpt:

“He complains of persistent right ankle pain, and tenderness over the base of the fifth metatarsal of the right foot but denies any instability, incoordination, weakness or fatigability per se.  Denies any flareups related to any specific activities.”

The pertinent physical exam findings are also in the chart below.  The examiner made the following statements in the diagnoses section of the C&P exam:

“Status post right ankle sprain, status post fifth metatarsal fracture, healed.  Normal ankle and foot exam.  No functional impairment.  The right ankle and foot range of motion and joint function is not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use.  The diagnosis is confirmed on x-rays.

Right peroneus brevis avulsion fracture, healed.  Minimal functional impairment.  The right ankle and right foot range of motion and joint function is not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use.”

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)	Ortho ~8 Mos. Pre-Sep	NARSUM ~7 Mos. Pre-Sep	VA C&P ~ 1week. Post-Sep	
Dorsiflexion (20 Normal)	0	0	20	
Plantar Flexion (45)	35	30	40	
Comment	Pos. tenderness right ankle ligament & base 5th MT; Pos. anterior drawer; Neg. Talor tilt; Decreased sensation lateral foot	No effusion; Pos. ankle tenderness; Normal sensation; Tender base 5th MT with small deformity	No instability; Normal strength & sensation	
§4.71a Rating	20%	20%	0% (VA 10%)	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied VASRD code 5283 (mal-union or non-union of the tarsal or metatarsal bones) and rated it 10% consistent with “moderate.”  The PEB did not rate the ankle condition adjudicating it as Category II, contributing to the unfitting foot condition.  The VA applied code 5284 (other foot injuries) and rated it 0%, citing the normal foot exam, “healed” metatarsal fracture on X-ray and no functional impairment.  For the ankle condition, the VA applied code 5271 (limited motion of the ankle) and rated it 10% consistent with “moderate” based on “minimal functional impairment.”  Since the NARSUM and C&P exams addressed both the foot and ankle conditions together, the Board first considered which exam was the most probative exam on which to base its rating recommendation.  While each exam was equally comprehensive, the C&P exam 7 months was closer to separation (accomplished 6 days after separation).  It is incongruent for the Board to assign a higher probative value to one exam in its rating recommendation for one of the conditions and then assign a higher probative value to a different exam for the other condition.  Board members agree that the C&P exam carried more probative weight for both recommendations in that regard.  The C&P exam documented essentially normal ankle ROM measurements, no ankle instability and a normal right foot exam.  The CI’s right ankle/foot pain was responsible for his minimal functional impairment.  The Board reviewed all appropriate coding/rating schemes including those utilized by the PEB and VA along with code 5003 (degenerative arthritis) which would allow for a 10% rating based on painful motion.  Appropriate application of any VASRD code would result in a 10% rating for either the right ankle or foot condition and confer no benefit to the CI.  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 fifth metatarsal tubercle nonunion 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 fifth metatarsal tubercle nonunion 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 20131014, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 22 Apr 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN