RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03266
BRANCH OF SERVICE:  NAVY	Separation Date:  20070829

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Operations Specialist) medically separated for osteoarthritis, ankle s/p Open Reduction Internal Fixation (ORIF) right distal fibular fracture, rated 10%.  

CI CONTENTION:  The applicant has asked for consideration of all conditions in his application.  His 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 20070626	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Osteoarthritis, Ankle S/P ORIF Right Distal Fibular Fracture	5299-5003	10%	Residuals, Right Ankle Distal Fibula Fracture, S/P ORIF with Surgical Scars	5271	20%	20071115	
Other Conditions x 0 (Not In Scope)	Other x 6 	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20080214 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Ankle Condition.  The CI injured his right ankle (distal fibula fracture) on 2 January 2006.  He underwent ORIF surgery on the same day of the injury.  A right ankle x-ray done in February 2006 after surgery showed no change in the anatomic alignment.  The Orthopedist in August 2006 noted a second osteochondral (bone) defect and the CI underwent a second procedure for spur removal and hardware removal.  The CI underwent extensive physical therapy (PT) from February 2006 through to February 2007.  The CI continued to report pain and limitations in his ability to perform his duties.  He had pain with squatting, stairs and prolonged standing.  He was placed on limited duty (LIMDU) for 3 months which started on 29 January 2007.  The Orthopedist recommended an extension of the LIMDU for another 3 months because recovery could take up to 9 to 12 months.  A right ankle x-ray done in March 2007 showed no evidence of acute injury.  The MEB Narrative Summary (NARSUM) exam approximately 5 months prior to separation documented that despite compliance with therapy the CI remained unable to resume running, prolonged standing, and had difficulties with stairs which made shipboard duty not advisable.  The MEB Addendum exam approximately 4 months prior to separation, documented that the CI had pain with dorsiflexion with activity such as going up stairs, walking and prolonged standing.  He was on shore duty, as his inability to dorsiflex the ankle prevented him from going up and down ladders.  The examiner’s conclusion was “an osteochondral lesion and old healed fibula fracture on the right ankle, as well as an anterior tibial osteophyte that is status post resection.”  The VA Compensation and Pension (C&P) exam, approximately 3 months after separation, documented that the CI still experienced right ankle pain as well as difficulty with right ankle range-of-motion (ROM).  If the CI stood for 20 minutes or longer, or walked for an hour his right ankle would swell.  He had right ankle pain with lifting or walking up/down stairs as well as cold weather and his right ankle popped and it would sometimes give-out.  The pain would increase to 7/10 with flare-ups.  He was unable to run for fear of causing problems with his right ankle.  The CI did not wear an ankle brace.  

There were ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.  

Right Ankle ROM
(Degrees)	MEB ~5 Mo. Pre-Sep	MEB Addendum ~4 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Dorsiflexion (20 Normal)	“Symmetric ROM”	Approx. 15	10 decreased to 8 after repetition	
Plantar Flexion (45)		Approx. 45	18 decreased to 15 after repetition	
Comment:  Last surgery ~1 Yr. Pre-Sep	tender to palpation (TTP); well healed surgical scar; no effusion or laxity	Gait “somewhat restricted but grossly normal”; painful motion; + TTP; no laxity; well healed scars	ROM with pain; gait nml except walks in a right foot that is slightly inverted about 5 degrees; slight swelling and tenderness; wears insoles; strength, reflexes sensory intact	
§4.71a Rating	10%	10%	20% (VA 20%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the right ankle condition as analogous to 5003 (Arthritis, degenerative [hypertrophic or osteoarthritis]) and rated at 10%.  The VA coded the right ankle with surgical scars condition as 5271 (Ankle, limited motion of) and rated at 20% - “Marked.”  The Board considered whether the evidence supported a rating higher than 10% for the right ankle condition.  The Board noted that the VA exam although 3 months post-separation was more comprehensive with more comprehensive and precise (goniometric) ROM testing which included Deluca criteria whereas the MEB Addendum was 4 months prior to separation and used approximate ROMs.  The Board placed higher probative value on the VA exam because it was more proximate to separation, met the VASRD requirements of §4.46 (accurate measurement) and therefore; most closely approximate the functional limitations associated with the right ankle condition at the time of separation.  The Board determined that the limited ROM in both dorsiflexion and plantar flexion following repetition along with pain and tenderness with slight swelling more nearly met the 20% rating criteria for “marked” ankle limitation of motion.  The Board considered rating under code 5284 (Foot injuries, other); however, the Board agreed that the level of functional impairment was not at a “severe” level required for a rating higher than 20%.  Alternative rating analogous to 5262 (Tibia and fibula, impairment) would also rate no higher than 20%.  

The Board then deliberated if the scar were separately unfitting and ratable.  The Board’s threshold for adding unfitting associated conditions for rating requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The scar was not listed on the NARSUM as not meeting retention standards and was not on the MEB or PEB forms.  The MEB exam indicated that the scar was well healed and there was no mention of associated pain on palpation.  The VA examiner noted that the scar had no tenderness and there was no mention of keloid formation.  There was no mention that boots or other military footgear irritated the scar.  The Board adjudged that that there was not a preponderance of evidence that the scar condition caused duty limitations.  The Board concluded therefore that the scar 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 recommends a disability rating of 20% for the right ankle condition coded 5271.  

BOARD FINDINGS:  In the matter of the right ankle condition, the Board unanimously recommends a disability rating of 20%, coded 5271 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Osteoarthritis, Ankle S/P ORIF Right Distal Fibular Fracture	5271	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140424 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 29 Apr 16 ICO XXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 26 Jan 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 25 Jan 16 ICO XXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 15 Apr 16 ICO XXXXXXXXXXXXXXX

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

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

     a. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

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

     c. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
     
     e. XXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10%) effect date of discharge.
 
     f. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
     h. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) 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.