RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02467
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20080630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Information Systems Technician Second Class) medically separated for osteoarthritis localized ankle/foot.  The foot condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The “osteoarthrosis, localized, primary, involving ankle and foot”; “left ankle joint pain” and “osteochondritis dissecans,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition (thoracic back strain) for PEB adjudication.  The Informal PEB adjudicated “osteoarthritis localized ankle/foot” as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II (contributing to unfit).  The PEB determined the thoracic back strain was Category III (not separately unfitting and does not contribute to the unfitting condition).  The CI made no appeals and was medically separated.

CI CONTENTION:  “PLEASE CONSIDER ALL CONDITIONS”  

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 20070727	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Osteoarthritis Localized Ankle/Foot	5271	20%	Left Ankle Sprain, Status Post Surgery	5010	10%	20081110	
			Left Foot Degenerative Joint Disease With Bunion Deformity	5284	10%		
Osteocondritis Dessicans Ankle	Cat II	 No VA RATING	
Osteophytes, Tibia/Talus Talus			
Thoracic Back Strain	Cat III	Lumbar Spondylosis	5299-5239	10%	20081110	
Other x 0 (Not In Scope)		Other x 5 	
RATING:  20%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20090515 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY: 

Osteoarthritis Localized Ankle/Foot Condition.  After two prior left ankle injuries that required arthroscopic surgery in 1996 and 2004, the CI re-injured the ankle playing sports in 2005.  Surgery in November 2005 removed a loose body, excised osteophytes, revised cartilage and addressed an osteochondral defect of the talus  (damage to a piece of cartilage and underlying bone in the ankle).  At the narrative summary (NARSUM) evaluation on 7 May 2007 (14 months prior to separation), the CI complained of left ankle pain which prevented him from running and caused difficulty climbing stairs or ladders. Examination showed a normal gait with use of an ankle brace.  “Trace” swelling was present medially.  Left ankle dorsiflexion was 20 degrees (normal 20 degrees) and plantar flexion 20 degrees (normal 45 degrees).  At a second NARSUM 2 weeks later, the CI’s chief complaint was left foot and ankle pain.  However, no history of foot pain separate from the ankle was described.  Exam of “feet/ankle” reported findings limited to the left ankle.  There was mild left ankle joint swelling and some tenderness.  Dorsiflexion was 5 degrees and plantar flexion 25 degrees.  Gait was “hampered by decreased flexibility of left ankle.”  

A NARSUM addendum dated 12 June 2007 (13 months prior to separation) recorded a chief complaint of “pain in the left ankle with history of prior surgeries.”  There was no report of other foot complaints except of the left ankle.  Examination showed left ankle dorsiflexion of 5 degrees and plantar flexion of 28 degrees.  Surgical scars were well-healed and there was mild ankle swelling.  X-rays of the left ankle showed severe osteoarthritis that was worse compared to X-rays in 2006.  On the DD Form 2807 dated 6 May 2008 (2 months prior to separation) the CI checked “Yes” for “Foot trouble” but recorded specific complaints limited to the left ankle.
 
At the VA Compensation and Pension (C&P) exam performed 4 months after separation, the CI reported constant left ankle pain, weakness, stiffness and fatigability.  He also reported pain in both feet.  Examination showed a normal gait and no use of assistive devices.  Left ankle dorsiflexion was 10 degrees and plantar flexion 15 degrees.  Pain occurred at extremes of motion.  There was also “slight tenderness” of the plantar aspect of the left foot.  X-rays showed degenerative changes of the left ankle and minimal degenerative changes of the left foot with a bunion deformity.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 5271 code (ankle, limited motion of).  Since VASRD §4.14 (avoidance of pyramiding) stipulates that the evaluation of the same disability under various diagnoses is to be avoided, the PEB properly subsumed osteochondritis dessicans and osteophytes under the unfitting ankle condition.  The VA rated the ankle condition at 10% using the 5010 code (arthritis due to trauma), which defaults to limitation of motion criteria.  Although 20% is the highest rating available via the PEB’s coding pathway, the Board considered other routes to a higher rating.  However, since ankylosis was not present a higher rating was not supported under the 5270 or 5272 codes; and the 5262 code (tibia and fibula, impairment of) was considered inapplicable since there was no tibial or fibular malunion present.  The Board also considered the 5283 code (tarsal, or metatarsal bones, malunion of, or nonunion), given the osteochondral defect in the talus.  However, it was agreed that “severe” was not described by the evidence, and therefore the next higher 30% rating was not warranted via this pathway.  Finally, the Board acknowledged the PEB’s use of the term “ankle/foot” in describing the unfitting condition, and that the VA assigned an additional 10% rating for a foot condition (foot arthritis with bunion) separate from the ankle.  However, it was clear from all documents in the military disability evaluation system that the relevant disabling condition was limited to the ankle and did not include any other foot issues.  Despite the radiographic presence of a bunion deformity and mild foot arthritis reported by the VA examiner, there is no evidence that such a condition interfered with duty performance.  The Board concluded therefore that any other foot condition could not be recommended for additional disability 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/foot condition.  

Contended PEB Conditions.  

The CI fell on some stairs in November 2006 and injured his mid-back.  Except for some imaging studies of the thoracic spine, which were unremarkable, there were no other available clinical entries regarding back pain.  According to one NARSUM examiner, the back pain was not improved by physical therapy or chiropractic care, and he continued to experience pain with prolonged sitting and standing.  The exam was limited to noting the presence of thoracolumbar tenderness, and a diagnosis of thoracic back strain was rendered.  The MEB examiner also noted a history of chronic mid-back pain, and indicated that magnetic resonance imaging (MRI) showed a muscle injury.  The non-medical assessment (NMA) reported that the CI’s medical limitations (which were unspecified) did not affect his ability to complete his current administrative duties.  In October 2007, the CI formally requested an extension on permanent limited duty in his administrative roles.  At the C&P exam (4 months after separation) the CI reported a history of low back pain since November 1996 and a lower back muscle tear that occurred in November 2005.  Pain was constant but he could function without medication.  The condition only allowed performance of administrative work.  However, he was able to vacuum, climb stairs, walk, perform gardening and push a lawn mower.

The thoracic back strain was not mentioned in the limited duty profile and was not implicated in the NMA.  This condition was reviewed and considered by the Board.  There was no performance based evidence from the record that the thoracic back strain condition significantly interfered with satisfactory duty performance, nor were there any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability.  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 this contended condition and so no additional disability rating is recommended.

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 osteoarthritis localized ankle/foot condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended thoracic back strain condition, the Board unanimously recommends no change from the PEB determination 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 20140425, 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)