RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX	CASE:  PD-2014-03291
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20030630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Basic Marine) medically separated for “nonunion of posterior process of talus, right,” rated 10%.  

CI CONTENTION:  “Please consider all conditions.”

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 20030423	VA* - (~7 Yrs. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Nonunion of Posterior Process of Talus, Right	5299-5003	10%	Right Ankle Fracture	5299-5271	NSC 	20100827	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  All NSC	
*Derived from VA Rating Decision (VARD) dated 20100830 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Ankle Condition.  Because the service treatment record (STR) had very limited primary source material, pertinent details relating to the CI’s right ankle condition were obtained from the MEB narrative summary dated 27 January 2003.  Apparently, the CI fell on an obstacle course approximately 10-15 feet and landed on his right foot in April 2002.  He did not seek out medical care for 3 weeks since he wanted to finish training without being held back.  When he did obtain care, he was put in a cast for 5 weeks on a non-weight bearing status and continued with crutches for 3 months.  Physical therapy did not help.  A bone scan in June 2002 revealed an increased uptake in the posterior right talus with bilateral stress reactions of the calcaneus and a stress fracture reaction of the left tibia.  (A bone scan in March 2002 revealed posterior right talar uptake, probably post-traumatic).  X-rays on 27 January 2003 revealed a nonunion of the posterior process of the talus.  Conservative therapy did not improve the CI’s condition and he refused to have a surgical excision of the fragment.  

The MEB narrative summary (NARSUM) dated 27 January 2003 indicated physical examination was limited to the lower extremity and noted the CI had a full range-of-motion (ROM) in the ankle and subtalar joint with a slight amount of tenderness on full plantar flexion.  There was some tenderness on palpation to the posterior ankle on both medial and lateral aspects as well as minimum tenderness on stressing of the flexor hallucis longus tendon (connects to the big toe) with the CI plantar flexing against resistance.  As a result of the injury, the CI was unable to perform his full duties, was unable to run without pain, and was unable to walk more than ½ mile without pain.

No limited duty (LIMDU) documentation was available for review.  The non-medical assessment dated 28 January 2003 indicated that the CI performed assigned tasks with little or no supervision, but did not have good potential for continued service due to his physical condition and he was not deployable or assignable worldwide.  The CI indicated on a DD Form 2697 dated 14 February 2003 that he had a fracture of the right ankle.  The MEB examination documents DD Form 2708-1 and DD Form 2808 were not in the case file for review.  No VA Compensation and Pension (C&P) examination was performed proximate to separation.  A review of the remote VA C&P examination dated 16 February 2011, performed 7 years after separation, offered little or no probative value, but revealed ROM measurements for right dorsiflexion 0 to 20 degrees and right plantar flexion 0 to 40 degrees with objective evidence of pain with active and repetitive motion.

The 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.

Right Ankle ROM
(Degrees)	
MEB ~5 Mo. Pre-Sep
	
VA ~7 Yrs. Post-Sep
	
Dorsiflexion (20 Normal)	“FROM”	20	
Plantar Flexion (45)		40	
Comment	Slight tenderness on full plantar flexion	Pain with motion	
§4.71a Rating	PEB 10%	  VA 10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The Navy PEB assigned a 10% rating using code 5299-5003 for nonunion of the posterior process of the right talus.  The VA assigned no rating proximate to separation and indicated the condition was not service connected (NSC) in the absence of a VA examination, but used code 5299-5271 for the right ankle fracture; however 7 years post-separation, the VA assigned a 10% rating, which has no probative value related the time of separation.  The Board sought a route to a higher rating, but was unable to do so in the absence of ankylosis, a marked ankle limitation of motion, or a malunion of the talus with marked deformity.  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.  

BOARD FINDINGS:  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 20140701, 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 4 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, former USMC

						 		XXXXXXXXXXXXXXX
								Assistant General Counsel
								(Manpower & Reserve Affairs)