RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX	CASE:  PD-2014-01414
BRANCH OF SERVICE: NAVY	SEPARATION DATE:  20091002

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Electrical Mechanical Equipment Repairman Trainee, medically separated for a left ankle condition.  The informal PEB adjudicated “delayed effects, Fx of ankle w/scarring and nerve entrapment due to multiple surgeries on left ankle” as unfitting, rated 0%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI non-concurred and requested a reconsideration PEB.  The reconsideration PEB adjudicated the same condition as unfitting, but rated it at 20%.  

CI CONTENTION: “Since discharge my ankle (L) has not improved, the swelling and pain continues on a daily basis.  Now, to compensate for the pain my knees, hips and back are all taking their part to ease the pain when I walk, sleep, stand and sit for too long.”  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 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 Recon PEB – Dated 20090709	VA* - (11 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Ankle w/Scarring and Nerve Entrapment Left Ankle	5271	20%	Residuals, S/P Fx of the Left Ankle w/Scarring and Nerve Entrapment Due to Multiple Surgeries	5271	20%	20081124	
Other x 0 (Not in Scope)	Other x 10	20081124	
Combined:  20%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20091124 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

Left Ankle Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI underwent left ankle open reduction and internal fixation surgery in November 2005 to repair a bi-malleolar fracture.  She had a subsequent surgery in May 2007 to remove hardware and another surgery in May 2008 to debride (“clean out”) the joint and resect a saphenous nerve neuroma that had been entrapped in the postoperative scar.  At the VA Compensation and Pension (C&P) examination on 24 November 2008, performed 10 months before separation, the CI reported constant pain which increased when she walked over 30 minutes.  She walked 1/2-mile every day.  She also reported that when she didn’t use a brace her ankle rolled and gave out.  She endorsed problems running, playing with her children and wearing work boots (especially when wearing a brace).  She denied ankle swelling, heat, redness, stiffness, weakness, fatigue or lack of endurance.  Physical exam showed widening of the ankle and soft tissue swelling, but no ankle joint swelling.  She displayed a normal gait, the ability to walk on toes and heels, and performance of partial squatting without pain.  Muscle strength was 5/5 throughout.  There was no tenderness, guarding, redness, heat, instability, weakness, abnormal movement, spasm, painful motion, pain against resistance, or pain on repeated movement.  Following repetitive motion, dorsiflexion was 10 degrees (normal 20 degrees) and plantar flexion was 5 degrees (normal 45 degrees).  According to the MEB NARSUM on 24 March 2009 (6 months prior to separation) the CI reported that she had constant pain which significantly increased if she exercised for over 30 minutes.  She also reported that her ankle had become unstable and rolled toward the outside when she exercised.  She endorsed problems with running, socializing, prolonged standing and wearing boots (because of wearing a brace).  Physical exam showed 5/5 strength, and no swelling, tenderness, guarding, redness, instability, abnormal movement, spasm or pain on ambulation.  Left ankle dorsiflexion was 10 degrees and plantar flexion 20 degrees.  An X-ray reportedly showed a stable lateral fixation plate to the distal fibula.  Bony malunion or mal-alignment was not reported.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left ankle condition 20%, coded 5271 (limited motion of the ankle), citing the inclusion of the DVA Rating Decision Letter (under the Disability Evaluation System [DES] Pilot Program) and its supporting rationale.  The VA rated the left ankle condition 20%, coded 5271 (limited motion of the ankle), citing marked limitation of motion.  The Board agreed that the ROM examinations proximate to separation detailed above were consistent with a marked limitation of motion, for the maximum 20% rating under this code.  The Board considered whether a higher rating was supported using other diagnostic code options.  Under the 5284 code (foot injuries, other) it was agreed that the severe level (30%) was not supported.  Because of the history of tibia and fibula fractures, the 5262 code (Tibia and fibula, impairment of) was also deliberated.  However, there was no evidence of malunion, nonunion or mal-alignment.  Moreover, even under an analogous 5262 coding approach the Board agreed that “marked” ankle disability was not described by the evidence, and therefore the next higher 30% rating was not warranted via this pathway.  Finally, the Board also agreed with the PEB and VA that any symptoms possibly attributable to the resected saphenous nerve neuroma and surgical scar were properly subsumed under the 5271 rating pathway.  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 left 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 left 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 20140319, 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)