RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02656
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20080820

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Builder) medically separated for a right ankle condition.  The right ankle 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). “Disorder of bone and cartilage” and “acquired equinovarus deformity” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “right talar dome lesion lateral” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The IPEB adjudicated “equinus secondary over pronation” as Category II, a condition that contributes to the unfit condition.  The IPEB also adjudicated “anxiety and depression” conditions as Category III, conditions that are not separately unfitting and do not contribute to the unfitting condition.  The CI made no appeals and was medically separated.  

CI CONTENTION:   The CI requests the Board consider all conditions.  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 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 20080813	VA* - (~10 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Talar Dome Lesion Lateral	5299-5003	10%	Status Post Right Ankle Fracture	5271-5010	10%	20090612	
Equinus secondary over Pronation	Cat II	No VA Placement	
Anxiety	Cat III	Depression and Anxiety	9434	30%	20090605	
Depression	Cat III					
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5	
RATING:  10%	COMBINED RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20090814 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:   

Right Talar Dome Lesion Lateral Condition.  The narrative summary (NARSUM) detailed a right ankle injury in 2006 that was treated with a CAM walker and casting, followed by physical therapy and medication.  The CI continued to experience pain with walking and running in the anterior and lateral right ankle.  In April 2007, he was diagnosed with plantar fasciitis and was treated for that condition.  Radiographs of the right ankle in October 2007 demonstrated right osteochondral defect of the talus.  He was fitted for orthotics and surgery was deemed unnecessary for the talus; however, he had surgery on the right hallux to remove a spur or bony fragment.  As he continued to recover, the pain in his ankle as well as the plantar fasciitis was unremitting.  Due to the lack of significant improvement, the CI was referred to the MEB.

The NARSUM, 4 months before separation, documented normal motor strength in the lower extremities.  Examination of the right ankle revealed crepitus on range-of-motion (ROM), and “reduced dorsiflexion to 90 (0-20) degrees bilateral ankles.”  (Neutral position is with foot at 90 degrees to ankle. From that position, dorsiflexion is 0 to 20 degrees; plantar flexion is 0 to 45 degrees.  The recorded ROM is not interpretable, and has no probative value).  The examiner also noted the CI walks with over pronation to likely compensate for an equinus deformity (reduced ability to flex the ankle upward towards the leg, this is likely related to his pes planus).  Examination of the right great toe demonstrated mild crepitus and tenderness with full ROM.  The examiner recommended surgery of the right ankle to remove the defect and lengthening surgery of the Achilles tendon as an adjunct procedure with the goal of improving the prognosis. The VA Compensation and Pension (C&P) exam was accomplished 10 months after separation.  He had pain in the bilateral feet, right worse than the left.  Some instability of the right foot accompanied by sharp shooting pain was also noted.  With medication he could walk only 1/2-mile without pain.  Physical examination documented painful motion in both feet and edema about the great toe.  His shoes showed excessive wear pattern and the examiner noted despite pes planus bilaterally, the Achilles tendon remains in alignment on weight bearing.  ROM recorded bilateral ankle dorsiflexion to 0 degrees and plantar flexion to 40 (45) degrees.  Pain or loss of ROM was absent on repetition.

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB rated the ankle at 10%, coded analogously 5099-5003 for painful limited motion.  Likewise, the VA, 10 months after separation, rated the ankle 10% for painful or limited motion, coded analogously 5271-5010.  The higher rating of 20% under the 5003 code requires X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  Board members agreed there was insufficient evidence to support the higher rating under this code since incapacitating episodes were not documented.  The Board next considered the evidence to support a higher rating under the 5271 code.  Limitation of ankle motion IAW VASRD criteria has two rating levels; 10% for “moderate” and 20% for “marked.”  The NARSUM examiner recorded a ROM that was clearly in error; however, noted the ROM was equal in both ankles.  The Board undertook a careful review of the record in hand, and was unable to find any notes that suggest a marked reduction in ROM; in fact, the record demonstrated primary complaints of pain in the right foot with minimal reference to right ankle pain.  A Podiatry entry in October 2007 noted tenderness to palpation of the right ankle and foot; however, suggested that ROM was not significantly reduced if at all.  The CI was able to perform the toe raise test but did have pain during the exercise.  At the C&P exam, it was noted that his gait was slightly guarded, but not antalgic and posture was erect.  The CI reported functional limitation on standing.  He noted that he could walk about 1/2-mile before experiencing foot pain.  He had flare-ups of foot pain described as moderate, occurring about every 2 weeks, lasting about 2 days, precipitated by excess walking, and alleviated by stretching exercises and medication.  Very little focus was placed on the ankle.  He did not require assistive devices for ambulation.   He wears corrective shoes and orthotics, and although his shoes demonstrated a wear pattern, there was no mention of callouses.  The VARD documented normal dorsiflexion ROM (0-20).  After considerable deliberation, Board members agreed there was insufficient evidence to support a rating higher than the 10%. The Board opined that the equinus deformity condition was an integral part of the ankle pain pathology and could not be recommended for additional rating IAW VASRD 4.14 (avoidance of pyramiding).  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.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions diagnosed as anxiety disorder NOS and depressive disorder NOS were 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 Board carefully reviewed the mental health record in evidence and noted the CI was prescribed medications for sleep (lunesta), anxiety (Klonopin) and depression (Prozac) which he received from his primary care physician.  He also participated in talk therapy with a psychologist.  The psychiatric addendum documented a normal mental status examination with mood reported as “good.”  The CI reportedly did not endorse any symptoms of depression and endorsed only mild anxiety symptoms.  The psychiatrist noted that from a mental health perspective, the recommendation would be for continued active duty without any restrictions.  The mental health conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   There was no performance based evidence from the record that any mental health condition 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 anxiety disorder NOS and depressive disorder NOS conditions and so no additional disability ratings are 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 right talar dome condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended equinus secondary to over pronation, anxiety NOS, and depression NOS conditions, 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 20140430, 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)