RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	 CASE:  PD-2014-01352	
BRANCH OF SERVICE:  NAVY	 SEPARATION DATE:  20080209  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Master at Arms) medically separated for a right ankle injury.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “other joint derangement, not elsewhere classified, ankle and foot” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition (nontraumatic rupture of other tendon) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “right ankle instability” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be Category II (contributing to the unfitting condition).  The CI made no appeals, and was medically separated. 

CI CONTENTION:  The application elaborates the current disability associated with the ankle condition.  The entire 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 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 20071220	VA* - (~3 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Instability	5299-5003	10%	Right Ankle Instability, Surgical Residuals	5271	10%	20080501	
Nontraumatic Rupture of Other Tendon	Cat II					
Other MEB/PEB Conditions x 0 (Not In Scope)	Other X 8	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20081117 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:    	

Right Ankle Condition (Subsuming Category II Diagnosis).   The service treatment record (STR) documents right ankle surgery (peroneal tendon repair as elaborated in MEB submission) on 27 July 2007 (7 months pre-separation), although records of the preceding details are not in evidence.  VA records provide a history of an original ankle injury in 2005.  The narrative summary (NARSUM) for this case was conducted 10 September 2007 (5 months pre-separation); and, was only 6 weeks after the surgery with no intervening STR entries.  It commented on a prior surgical procedure (tendon) without elaboration.  The examiner noted pain rated 2/10 with exacerbations to 5/10, indicated that the CI had just started weightbearing, detailed a rehabilitation plan, and did not provide physical examination findings.  An STR entry dated the same day as the NARSUM recorded “moderately limited” range-of-motion (ROM) and 4/5 strength without further exam details.  A primary care note 2 months later recorded painful motion, but grossly normal ROM; although, the MEB’s DD Form 2808 medical examination 3 weeks later documented non-specifically decreased ROM.  A subsequent physical therapy note on 28 November 2007 (3 months pre-separation) documents “gait antalgic on the right, mild amount of swelling” and full extensor strength; and, provides the only ROM measurements in evidence from the Service: dorsiflexion to 0 degrees (normal 20) and plantar flexion to 30 degrees (normal 45).  This was the final STR entry probative to rating.  There is no examination in the available Service evidence which documents the presence or absence of mechanical instability of the ankle.

A VA Compensation and Pension (C&P) examination was conducted 1 May 2008 (three months post-separation) and documented that the CI “continues to have constant pain and frequent swelling ... primarily on activity.”  The VA physical examination recorded a normal gait (specifying that a brace or assistive device was not required), well-healed incisions, the absence of swelling, tenderness or mechanical instability; and, a VA neurological C&P examination on the same day recorded 5/5 strength.  The VA measured ROM was dorsiflexion to 15 degrees and plantar flexion to 35 degrees.  

The Board directed attention to its rating recommendation based on the above evidence.  It is first clarified that the PEB’s Category II diagnosis is intrinsic to the rated condition and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, it is appropriately subsumed in the same rating.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was consistent with VASRD §4.71a criteria (conceding painful motion) for the Service ROM evidence and findings.  The VA’s rating under code 5271 for ankle limitation of motion cited the “moderate” criterion for 10%.  The maximum rating under 5271 is 20% for “marked” limitation.  Members agreed that the ROM limitation in evidence could not be reasonably characterized as marked.  There is no other applicable §4.71a joint code which would yield a rating higher than 10%, and members agreed that analogous rating under 5262 (tibia and fibula, impairment of) for contiguous ankle disability was neither appropriate nor favorable in this case.  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 of the right 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 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. 
RECOMMENDATION:  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 20140314, 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 8 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 USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN   
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN  
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 

				XXXXXXXXXXXXXXX
	     			Assistant General Counsel
				(Manpower & Reserve Affairs)