RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02994
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20081230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1 (Basic Marine) medically separated for “status post [S/P] open reduction and internal fixation (ORIF) of [right ankle]” rated at 10%.   

CI CONTENTION:  “Please consider all conditions.”  The 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 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 20081105	VA* -  based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P ORIF Right Ankle	5262	10%	S/P ORIF Right Ankle	5271	10%	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20100222 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Right Ankle Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an injury to the right ankle very early in basic training.  The CI was diagnosed with a fracture (minimally displaced distal fibula) which appeared to worsen with initial treatment in a cast, and in August 2008 (5 months pre-separation) an ORIF was performed.  Post-operative notes reflect a favorable course; but, the treating orthopedist (with MEB concurrence) opined that the duration of recovery and anticipated residuals were likely incompatible with successful completion of basic training and continued service in the Marine Corps.  Post-operative X-rays demonstrated a healing fracture with normal alignment and hardware position.  
The NARSUM was conducted 9 October 2008 (11 weeks pre-separation).  It documented an uncomplicated clinical course with a current status of “early weight-bearing in a cam boot [removable rigid brace similar to a ski boot] and he has been progressing somewhat nicely with this.”  Pain acuity or specific functional limitations were not elaborated, but the orthopedic examiner concluded that the CI “will … continue to wean off of crutches and he now can weight bear as tolerated ... however, it will be likely several weeks to months before he will be even close to returning to any kind of significant activity or being allowed to walk on uneven ground.”  The NARSUM physical examination documented an assisted gait, “minimal, if any” tenderness over the fracture, full motor strength, and normal sensation.  The NARSUM- measured range-of-motion (ROM) was dorsiflexion to 10 degrees (normal 20) and plantar flexion to 20 degrees (normal 45), which the examiner opined was “expected after cast immobilization.”  The final outpatient orthopedic entry in the STR is from 7 November (a month after the NARSUM) and documents “essentially full, painless ROM.”  The commander’s non-medical assessment did not provide functional details, stating only that the CI “is unable to train at this time.”

The CI failed to report for a scheduled VA examination and there is no temporally probative post-separation evidence except for a reference to VA treatment notes in the rating decision.  One of these notes documents ROM measurements (5 months post-separation) of dorsiflexion to 15 degrees and plantar flexion to 35 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating was under code 5262 (tibia and fibula, impairment of) which offers ratings for contiguous ankle disability: 10% for “slight,” 20% for “moderate” and 30% for “marked.”  It is noted that the code specifies complications of fractures (non-union or malunion) which were not present, thus its application would be analogous in this case.  The VA’s 10% rating (relying chiefly on Service evidence) was under code 5271 (limitation of motion) which offers 10% for “moderate” (specified in the rating decision) and 20% for “marked” limitation.  Other than rating under criteria of 5003 (degenerative arthritis) which would maximally achieve a 10% rating, there are no other codes available in VASRD §4.71a which are applicable to this case.  Members agreed that a higher rating under 5271 was not supported by the ROM evidence, but deliberated the option of a higher rating under 5299-5262.  It is conceded that the disability still present at separation could fairly be rated as moderate (all members agreeing that it could not be reasonably rated as severe); but, the disability at the time of separation reflects the fact that the fracture was not completely rehabilitated.  The PEB’s decision to separate an injured recruit prior to full recovery, who was not expected to recover expeditiously or completely enough to finish basic training and meet the rigorous physical demands for a Marine, was reasonable.   The disability rating, if based on functional criteria, should therefore be premised on the projected permanent disability.  Especially considering that conceding the higher moderate rating under 5299-5262 would be of no practical benefit to the CI, members agreed that the PEB’s rating under criteria of 5262 was fair.  It should also be noted that the VA, based on the same evidence, did not find grounds for a higher 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 of the right 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 right 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. 

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 20140623, 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 2 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 USMC
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC   
- XXXXXXXXXXXXXXX, former USMC 

				XXXXXXXXXXXXXXX
	     		Assistant General Counsel
				(Manpower & Reserve Affairs)