RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02810
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150429
SEPARATION DATE:  20070615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Master of Arms) medically separated for left ankle post-traumatic arthrosis.  The ankle 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 (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “traumatic arthropathy involving lower leg,” “closed fracture of lateral malleolus,” and “anxiety, not otherwise specified (NOS),” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “left ankle post-traumatic arthrosis” as unfitting, rated 10% and, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining orthopedic conditions were determined to be Category II (contributing to unfit).  The anxiety NOS condition was determined to be Category III (not separately unfitting and does not contribute to the unfitting condition).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI requested that the Board review all of his 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 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 20070425	VA* - (~6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Ankle Post-Traumatic Arthrosis	5299-5003	10%	Post Traumatic Arthrosis Of The Left Ankle	5271	10%	20080110	
Closed Fracture Left Lateral Malleolus	Cat II					
S/P Left Ankle Fracture, Impingement Syndrome
With Synovitis in the Right Shoulder		No VA Placement**	
Anxiety NOS	CAT III	Generalized Anxiety Disorder	9400	30%	20080110	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20080530 (most proximate to date of separation (DOS)). 
**A later VARD rated his shoulder condition as not service connected.

ANALYSIS SUMMARY:  

Left Ankle Post-Traumatic Arthrosis Condition (Including Closed Fracture Left Lateral Malleolus and S/P Left Ankle Fracture, Impingement Syndrome).  The CI fractured his left ankle and had open surgical repair in 2003 with additional surgeries including partial removal of hardware.  Treatments including activity restriction, bracing, physical therapy, injections, pain management and anti-inflammatory medication were not successful, and the CI was not a candidate for additional surgeries.  At the time of the narrative summary (NARSUM), the CI had left ankle pain with walking.  The MEB physical exam noted left ankle well healed scars.  Range-of-motion (ROM) of the ankle was limited as summarized below.  There was tenderness of the ankle ligaments, mild edema and pain with resisted movements and squeezing.  Radiographs documented retained hardware, and widening of the ankle joint (“widening of the tib-fib clear space.  

At the VA Compensation and Pension (C&P) exam performed 6 months after separation, the CI reported severe left ankle pain with weakness, stiffness, swelling, lack of endurance, and a locking sensation.  He reported flare-ups and use of Motrin and a narcotic pain reliever.  Standing, lifting, and carrying had been limited because of left ankle problem.  Exam noted a normal gait with well healed, non-tender left ankle scars and a tender left ankle with pain limited motion summarized below.  Imaging documented degenerative arthritis. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Left Ankle ROM
(Degrees)	MEB ~3 Mo. Pre-Sep	VA C&P ~6 Mo. Post-Sep	
Dorsiflexion (20 Normal)	10	10 (15*)	
Plantar Flexion (45)	30	40	
Comment	Pain on resisted motion	*5 degree additional limitation after repetition	
§4.71a Rating	10%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the left ankle at 10% with slightly different disability codes.  The PEB 5003 coding for painful motion was IAW VASRD criteria.  The Board deliberated if higher rating under code 5271 (ankle limited motion) was warranted.  Given the documented normal gait and ROMs, the Board adjudged that there was insufficient evidence of “marked” limitation of ankle motion for any rating higher than 10%.  After due 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 rating for the left ankle condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right shoulder and anxiety NOS conditions were not unfitting.  The Board’s threshold for countering fitness determinations for the Category II right shoulder condition is “reasonably unfitting” while the threshold for the Category III anxiety condition (not unfit) requires a preponderance of the evidence.  Both evidence levels remain adherent to the DoDI 6040.44 “fair and equitable” standard.  

Synovitis in the Right Shoulder.  There were scant treatment records regarding the right shoulder condition.  A magnetic resonance image request dated in May 2006 for rule-out “subclinical glenoid tear/partial supraspinatus tendon tear” was administratively closed after 30 days without any appointment.  The only other record evidence of the shoulder condition was in the mental health NARSUM addendum under past medical history and under Axis III.  The right shoulder condition was not noted in any LIMDU or implicated in the non-medical assessment (NMA) statement.  There was no performance based evidence from the record that the shoulder condition significantly interfered with satisfactory duty performance.  After due deliberation, the Board concluded that there was insufficient cause to recommend that the right shoulder condition be found unfitting, and so no additional disability rating is recommended.  

Anxiety NOS.  There were no behavioral health treatment notes found in the records and VA evidence indicated that further records were unavailable despite multiple attempts to locate additional Service records.  The mental health addendum to the NARSUM indicated that the CI had sought mental health treatment in May 2006 for depression-like symptoms and irritability “triggered and exacerbated by a chronic and complicated treatment course” for his ankle.  The CI had treatment for pain management, generalized anxiety disorder and a history of alcohol abuse (abstinent for 3 years).  He was treated in the intensive outpatient program which included counseling and medication management.  Psychotropic medications were changed (Zolpidem) due to self-discontinuance attributed to side effects, and the CI was on a single antidepressant (Venalafaxine [Effexor]).  At the exam, the CI complained of irritable mood, heat intolerance, and inability to lose weight.  Mental status exam noted an anxious an irritable affect without any signs of psychosis and the CI denied suicidal thoughts.  The Global Assessment of Functioning (GAF) was “60, manifested by moderate difficulty in occupational and social functioning.”  The psychiatrists indicated that the CI was competent, not “a danger to self or others,” and that he had “reached maximum medical benefit of military treatment and that has not restored the (CI) to a duty status.”  The MEB referred the anxiety NOS condition to the PEB.  The NMA statement was dated after the NARSUM and prior to the mental health NARSUM Addendum and stated the CI had limitations due to movement (likely ankle condition) and “Additionally, (the CI) is not able to carry assigned weapons critical to unit mission readiness.”  

The VA psychiatric C&P exam, performed 6 months after separation, provided a detailed psychiatric history and exam.  The CI reported symptoms of being nervous, impatient, scared, worrying all the time, and difficulty sleeping.  The CI reported rare occasions of becoming enraged hitting walls or destroying objects.  Report included two emergency room visits while in the Navy for episodes of anxiety and becoming “outraged.”  History indicated that the CI bought a house with his wife in June 2007 (the month of separation from Service) and was separated from his wife in approximately December 2007.  The CI had been employed as a computer instructor for four months (until November 2007) when he was involved in a vehicle crash and injured his back.  The examiner stated the CI was tense, anxious, restless and had an exaggerated startle response.  The diagnosis was generalized anxiety disorder with an Axis II diagnosis of personality disorder NOS.  The GAF was 60 (in the range of moderate symptoms or moderate difficulty in social, occupational, or school functioning in social, occupational, or school functioning).  The examiner’s assessment of functioning was that the CI “might have some difficulty establishing and maintaining his effective work and social and family relationships … (and that)  There is no current evidence that the patient poses an immediate threat or persistent danger of injury to self or others.  However, the patient has a history of some rather serious suicidal ruminations three years ago.  Therefore, his suicidal potential cannot be ruled out.”  

The Board directed its attention to its fitness/rating recommendation for the anxiety condition based on the above evidence.  The record indicated the CI’s entry into mental health (May 2006) treatment preceded his LIMDU (August 2006 for the ankle condition) and likely entry into the disability system.  The anxiety NOS condition was not noted in any LIMDU, however the NARSUM addendum indicated the mental health condition did not allow return to duty.  The CI was on psychotropic medication and still engaged with the intensive outpatient program.  The NMA statement about inability to carry a weapon appeared to implicate the anxiety condition as it could not be attributed to the unfitting ankle condition, and aligned with the VA examiner’s later assessment of concern of suicidal potential.  

The Board concluded that there was a preponderance of evidence that the CI’s anxiety disorder would have made him unfit to return to being a Master of Arms.  The CI’s mental health disability was not the result of a highly stressful event (IAW VASRD §4.129) and the Board considered the disability rating under VASRD §4.130.  The Service and VA examiners described a moderate disability picture closest to the 30% criteria of “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).”  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of anxiety NOS condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 9400 and meets the VASRD §4.130 criteria for a 30% rating.  

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.  In the matter of the contended right shoulder condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  In the matter of the contended anxiety disorder condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 30%, coded 9400 IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Left Ankle Post-Traumatic Arthrosis	5299-5003	10%	
Anxiety Not Otherwise Specified	9400	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140610, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 2 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
      (c) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX.
	(e) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 30 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 20 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 20 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 40 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 30 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 40 percent disability rating (increased from 20 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     d. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 40 percent disability rating (increased from 20 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Temporary Disability Retired List for six months beginning the date of separation with a 50 percent disability followed by placement on the Permanent Disability 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Retired List at the conclusion of six months with a final rating of 30 percent and entitlement to disability retired pay.

     g. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retired pay with a 30 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.

     h. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retired pay with a 40 percent disability rating (increased from 10 percent) with placement on the Permanent Disability Retired List effective date of discharge.
     
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)