RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	 CASE:  PD 2014-00921
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20060531

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve CPL/E-4 (0311, Rifleman) medically separated for a right ankle condition by the Formal Physical Evaluation Board (FPEB) rated 10%.  

CI CONTENTION:  his injury continues to give him problems.  He has had surgeries and is scheduled for more.  The applicant’s 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 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 Veterans Affairs Schedule for Rating Disabilities (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:  
   
SERVICE PEB – 20060321	VARD -  20050523  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Instability and Pain	5299-5003	10%	Chronic Right Ankle Instability	5271	10%*	20040812 & STR	
COMBINED RATING:  10%	COMBINED RATING FOR ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Right Ankle Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI underwent two right ankle surgeries in June 2002 and November 2004 for instability.  Despite surgical and conservative treatment, the CI’s ankle condition could not be adequately rehabilitated.  The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria including the NARSUM physical findings, are summarized in the chart below.

Right Ankle ROM
(Degrees)	VA C&P ~21 Mos. Pre-Sep
(20040812) 	Ortho ~12 Mos. Pre-Sep
(20050517) 	MEB ~10 Mos. Pre-Sep
(20050718) 	
Dorsiflexion (20 Normal)	15	15	Dorsiflexion to neutral	
Plantar Flexion (45)	35	Full	20	
Comment	Tenderness, painful motion, mild swelling	Tenderness, swelling	Tenderness at the lateral aspect of the right foot, increased sensitivity, stable tendons. Mild swelling	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB rated the right ankle condition at 10%, code 5299-5003 (analogous to degenerative arthritis) citing tenderness and mild swelling.  VA rated the condition at 10%, coded 5271 (ankle limitation of motion). The Board considered if the limitation of motion was moderate or marked when considered under VA code 5271.  The Board agreed that the ROM examinations proximate to separation detailed above were consistent with a moderate limitation of motion for the 10% rating under cod 5271 or 5003.  All Board members agreed the limitation of motion was no more than moderate supporting the 10% rating adjudicated by the PEB.  A higher rating of 20% was not indicated in the absence of marked limited ROM of the ankles.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the right ankle condition was appropriately recommended in this case.

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.  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140218, 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 1 Feb 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 USN
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN   
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 

			XXXXXXXXXXXXXXX
	     		Assistant General Counsel
			(Manpower & Reserve Affairs)