RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01444
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20080830

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E-5, Rifleman and Guard, medically separated for “left ankle instability,” with a combined disability rating of 10%.  

CI CONTENTION:  He contends the VA service connected his hearing loss at 10%.  The applicant’s complete submission is at Exhibit A

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 - 20080605	VARD - 20090606	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Ankle Instability	5299-5271	10%	Left Ankle Injury	5271	0%	20090128	
Hearing Loss	Cat III	Hearing Loss, Left Ear	6100	0%	20090128	
		Tinnitus, Left Ear	6260	10%	20090508	
		Hearing Loss, Right Ear	6100	NSC	20090128	
		Tinnitus, Right Ear	6260	NSC	20090128	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:

Left Ankle Instability.  The record showed that the CI was seen on 10 August 2005 after he injured his left ankle while running.  No fracture was seen on X-ray.  He was treated with duty restrictions, medications, and crutches, but had persistent pain.  An ankle arthroscopy in March 2006 was unsuccessful and led to further surgery on 1 September 2006 involving reconstruction of a ligament on the outside (lateral) aspect of the ankle.  Despite rehabilitation, he had continued instability and a subsequent procedure was done on 5 April 2007.  This also failed to resolve his symptoms and he was entered into the Medical Evaluation Board (MEB) process.  The MEB narrative summary (NARSUM) was dated 18 January 2008, 6 months prior to separation.  He reported ongoing pain and was limited to walking over 75 yards.  He used a brace and endorsed giving way.  On examination, his gait was not recorded.  The range-of-motion (ROM) was limited as recorded below.  Instability was not documented.  The scar from the incision was noted to be healed.  At the VA Compensation and Pension (C&P) examination on 28 January 2009, performed 5 months after separation, the CI reported the continued use of an ankle brace for pain and giving way.  He denied instability.  He was able to stand for 15-30 minutes and could walk ¼ mile.  His gait was abnormal due to pain (antalgic).  On examination, his ROM was full and pain free.  Instability was not present.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left ankle at 10%, coded 5299-5271 (analogous to limitation in motion).  The VA rated the left ankle at 0%, noting an essentially normal post-surgical examination other than an abnormal gait, coded 5271.  The VA examination was more proximate to separation and further from surgery.  The improvement seen between the MEB and VA examinations is consistent with expected progress after rehabilitation.  As the two examinations bracket the date of separation, it is not unreasonable to assume that the level of function at the time of separation was between these examinations; this supports a 10% rating.  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.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that hearing loss was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The hearing loss was not profiled or implicated in the commander’s statement and was not judged to fail retention standards although it was listed by the MEB.  Tinnitus was not addressed by the MEB or PEB and is outside the Scope of the Board.  Regardless, there is no evidence in the record that it interfered with duty performance.  The Board also noted that the hearing was relatively stable with a left > right loss for over 4 years at separation, preceding the unfitting ankle injury, implying that he was fit for duty from a hearing standpoint.  It was reviewed and considered by the Board.  There was no performance based evidence from the record that hearing loss significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended hearing loss condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the left ankle instability condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hearing loss conditions, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  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 20140324, 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 12 Apr 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 USN
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC