RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00429
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20070115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Rifleman) medically separated for right ankle fracture.  The ankle could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  “Pain in joint involving ankle and foot” and “stiffness of joint, not elsewhere classified, involving ankle and foot” conditions were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “right ankle fracture” as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB also adjudicated “joint pain localized to the ankle likely due to the arthritis” and “joint stiffness in the ankle likely due to arthritis” as Category II, conditions which contribute to the unfitting condition.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI makes no specific contention.  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 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 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:    

IPEB - Dated 20061101	VA* - ~3 Months Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Joint Ankle Fracture S/P ORIF	5299-5262	20%	Residuals, Right Ankle Fracture	5019	10%	20070409	
Joint Pain Localized to the Ankle likely due to the Arthritis	Cat II					
Joint Stiffness in the Ankle likely due to Arthritis	Cat II					
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5	
RATING:  20%	COMBINED RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20070919 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Joint Ankle Fracture Condition.  According to service treatment notes and the narrative summary (NARSUM), the CI fractured his right ankle and underwent surgery for open reduction internal fixation 4 April 2004.  The CI subsequently underwent three additional surgeries.  At the first two follow-up surgeries the surgical hardware was removed.  In the same procedure, scarring and soft tissue, as well osteochondral defect (OCD) damage to the joint cartilage, were debrided.  Magnetic resonance imaging (MRI) of the ankle on 8 March 2006 showed edema of the joint and the OCD of the talus (previously noted during the third surgery) with no tendon or ligament injury noted.  The CI underwent a fourth surgery on 14 July 2006 for debridement of DJD that was causing ankle impingement and repair of the OCD.  Following the last surgery, the CI was somewhat improved but was still unable to tolerate a full spectrum of weight bearing activities.  The surgeon indicated that the CI would likely need additional surgery for ankle fusion in the future and an MEB was recommended.

At the MEB exam on 30 September 2006, 3 months before separation, the CI reported ankle pain aggravated by weight bearing activities.  The MEB physical exam noted an antalgic gait.  Ankle range-of-motion (ROM) was dorsiflexion 5 degrees (normal 20) and plantar flexion was 30 degrees (normal 45), with painful motion.  There was no evidence of instability and strength and sensation were normal.

At the VA Compensation and Pension (C&P) exam on 9 April 2007, 3 months after separation, the CI reported ankle pain aggravated by long period of standing or with running.  He was employed as a mechanic at a car dealership and reported he had missed a “couple days” of work due to ankle pain and swelling.  He used an ankle brace at work, but did not use a cane or a crutch for ambulation.  The exam noted a “slight” antalgic gait.  There was tenderness of the ankle and an effusion was present.  Ankle ROM was painful and unchanged from the MEB exam.  There was no weakness, lack of endurance, incoordination, or additional loss of ROM on repetitive use or during flare-ups, but there was increased pain.  Lower extremity sensation and reflexes were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the ankle condition 20%, coded 5299-5262 (analogous to impairment of the tibia/fibula) and the VA rated it 10%, coded 5019 (bursitis).  The Board agreed that the evidence supports a 20% rating for the ankle condition coded analogously as 5299-5262 for impairment of the tibia or fibula with “moderate ankle disability” or coded as 5271 (limitation of ankle motion) for “marked” limitation of ankle motion.  The Board reviewed to see if the evidence supports a higher rating with any applicable code.  However, 10% is the highest rating available rated according to 5003 criteria, as is 5019, and 20% is the highest rating available coded as 5271.  
The Board next considered the rating criteria of 5262, which are subjective, with a 20% rating for “moderate” and 30% for “severe” ankle disability.  The Board noted that the findings at the MEB and C&P exam shortly after separation were consistent and indicated the CI used a brace, but did not need an assistive device for walking, and had flare-ups of ankle pain after long periods of standing or an impact activity such as running, and was improved by rest.  Member consensus was that this was best characterized as moderate ankle disability and not severe.  There is no other VASRD ankle code with a rating greater than 20%, except for 5270 (ankylosis), and there was no evidence of ankle ankylosis proximate to the date of separation or any other ratable impairment of the ankle.  The Board noted that the PEB adjudicated the ankle condition as a Category I unfitting condition of “right ankle fracture S/P ORIF” and two related Category II conditions of “joint pain localized to the ankle likely due to arthritis” and “joint stiffness localized to the ankle likely due to arthritis.”  The Board noted that they are all the same disability and multiple ratings are prohibited by VASRD §4.14 (Avoidance of pyramiding).  Thus, the Board determined that the evidence supports a 20% rating for the ankle condition and no higher.  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 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 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 20140104, with attachments
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 21 Jan 16

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

				XXXXXXXXXXXXXXX	     				  			Assistant General Counsel
				(Manpower & Reserve Affairs