RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01370
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150313
SEPARATION DATE:  20080929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Welder, Hull Maintenance Technician) medically separated for right ankle instability and sural neuritis.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The right ankle and neuritis conditions, characterized as “other joint derangement, not otherwise classified, ankle and foot” and “mononeuritis of lower limb, unspecified,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated “right ankle instability status post non-anatomical lateral ankle reconstruction” as unfitting, rated 20% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The second condition “sural neuritis, mostly resolved with some mild residuals, status post sural neurectomy” was determined to be Category II, which contributes to the unfitting condition.  The remaining condition (left ankle instability) was determined to be a Category III, which is not separately unfitting and does not contribute to the unfitting condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was discharged and still needed surgery on my left ankle.  I finally had surgery on it in March 2011.  I also didn’t receive a rating for Sural Neuritis.”

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:

Service IPEB – Dated 20080605	VA* - (~2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle Instability…	5299-5271	20%	Right Ankle Instability	5299-5271	20%	20080730	
Sural Neuritis…	Cat II	Right Foot Post-Operative Sural Nerve Surgery with Scar	8699-8625	10%	20080730	
Left Ankle Instability	Cat III	Left Ankle Instability 	5299-5271	10%	20080730	
Other x 0 (Not in Scope)	Other x 16	
Combined: 20% 	Combined:  80%	
*Derived from VA Rating Decision (VARD) dated 20081216 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  

Right Ankle Condition.  The service treatment record (STR) reflected that the CI had original stabilization surgery (Bostom procedure) on his right ankle on 30 December 2003.  A subsequent right ankle sprain diagnosed in early 2007 resulted in renewed pain and a sensation of instability.  Despite radiologic absence of ligamentous instability, providers considered there was a failure of the previous surgery and hence the CI underwent a second stabilization surgery (Chrisman Snook procedure…re-routing of tendon through bone) on 9 July 2007.  Initially, he progressed well with rehabilitation and physical therapy; however, he developed an adhesion (scar tissue) of the sural nerve resulting in a significant increase in sensitivity and pain.  On 5 February 2008, the CI underwent neurolysis of the right sural nerve.  Post procedure, his gait, range-of-motion (ROM), and pain level improved.  His LIMDU listed numerous restrictions and the commander’s non-medical assessment implicated that the CI’s restrictions rendered him unable to perform within his military duties.

At the MEB narrative summary (NARSUM) examination performed on 12 May 2008 (5 months prior to separation) the CI reported an inability to successfully perform his military duties on a regular basis.  His physical examination (PE) revealed a mildly right-sided antalgic gait and non-painful and mildly limited ROM.  His diagnosis remained right ankle instability post-surgical reconstruction.  The examiner’s prognosis included, “The [CI] is unlikely to fully regain a level of function that is going to allow him to continue on active duty in the Navy.”

At the VA Compensation and Pension (C&P) examination performed on 30 July 2008 (2 months prior to separation) the CI reported constant burning, sharp, and sticking 7/10 pain with weakness, stiffness, swelling, heat, redness, giving way, lack of endurance and fatigability of both ankles and feet.  The pain was worsened by physical activity and relieved by prescription medication.  He further reported his functional impairment as, “can't run, can't play with my kids.”  The VA PE was detailed noting normal posture and gait.  There was tenderness and limited painful motion of both ankles without evidence of edema, effusion, weakness, redness, heat, subluxation, and or guarding of movement.  Both feet were tender without painful motion, edema, disturbed circulation, weakness, or atrophy.  Specifically, there was “moderate” tenderness across the metatarsal heads of both feet.  “He does not have any limitation with standing and walking.”  “He does not require any type of support with his shoes.”  He requires no orthopedic shoes, corrective shoes, arch supports, foot supports, build-up of the shoes and shoe inserts.”  His diagnosis was bilateral ankle instability, bilateral plantar fasciitis, and right-sided sural neuritis.  The CI’s usual occupation was a welder which he had performed for 7 years.  The C&P examination noted that the CI was currently employed in the same job.

The goniometric ROM evaluations for both ankles in evidence which the Board weighed in arriving at its rating recommendations, with documentation of additional ratable criteria, are summarized in the chart below.  
DOS 20080929
Ankle ROM
(Degrees)	MEB ~4 Mo. Pre-Sep
(20080509) 	VA C&P ~2 Mo. Pre-Sep
(20080730) 	
	Left	Right	Left	Right	
Dorsiflexion (20 Normal)	50	35	10	10	
Plantar Flexion (45)	25	20	30	20	
Comment	“mildly’ antalgic gait	painful motion	
§4.71a Rating	10%	10%	10%	10-20%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and the VA rated the right ankle condition at 20% impairment under the analogous code 5299-5271 (ankle; limited motion) citing marked limited motion by the VA and presumably the same by the PEB.  The Board first acknowledged that the PEB’s current rating of 20% was the maximum allowed under the VASRD’s limitation of motion code for the ankle.  Members than considered other coding options for a possible higher rating.  Absent evidence of joint ankylosis, no other ankle code rated greater than 20%.  Code 5284 (foot injuries; other) was also considered at moderately severe (20%) or severe at 30%; however, member consensus was that the described findings of “mild” antalgic gait, “mildly” limited ROM, normal gait, and no limitation in standing or walking, did not reach the severe (30%) impairment level.  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 ankle condition.

Other PEB Conditions.  The CI’s third surgical procedure was a neurolysis and neurolectomy (cutting and or removal of a portion of nerve) of a distal branch of the right sural nerve in an attempt to control increasing ankle and foot pain.  The operative report dated 5 February 2008 clearly revealed a large amount of scar tissue directly adjacent to a neuroma (nerve swelling) of the sural nerve which was intimately involved with the entirety of the prior surgeries.  The PEB adjudicated this as a related Category II condition.  The Board unanimously agreed that the neuritis condition was related and included in the discussion above and therefore does not warrant consideration as a separately unfitting condition.  All related symptoms and functional impairment were subsumed under the rating for the right ankle as noted above.

Remaining Conditions.  The PEB also adjudicated left knee instability as a Category III condition (not separately unfitting and not contributing to the unfitting condition).  The STR indicated that the CI had a history of multiple left ankle sprains with the first encounter specifically documented on 14 January 2007.  Although pain continued about his left ankle, 3 months later (17 months prior to separation) his ROM was listed as “within normal limits.”  A magnetic resonance image of the left ankle was normal.  The NARSUM simply noted that “He was having ongoing left ankle problems.”  Although his diagnosis remained “left ankle instability,” the STR noted a single instability test…an anterior drawer test, as being “stable.”

The Board directed attention to its recommendations based on the above evidence.  The Board deliberated if the CI’s left ankle condition was at a level of severity as to prevent performance of his military duties.  In this case, Board members agreed that the objective clinical findings did not support instability of the left ankle as a separately unfitting condition.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the left ankle condition favors it as a Category III condition and therefore, recommends no change in the PEB’s adjudication.

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, which subsumes the Category III right sural nerve condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left ankle condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 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 5 Aug 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 USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC