RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00320
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20040415

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Warehouse Clerk, medically separated for “fracture/dislocated left ankle status post fusion,” with a disability rating of 20%.

CI CONTENTION:  He was given a higher rating by the VA.  The CI’s 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 Physical Evaluation Board (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 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 based upon a review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (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:  

SERVICE PEB - 20040218	VARD - 20050113	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fractured/Dislocation Left Ankle S/P Fusion	5270	20%	Fusion with Residual Scar, Left Ankle	5270	40%	20040916	
Avascular Necrosis of His Talus with…	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Fractured/Dislocation Left Ankle S/P Fusion Diagnosis.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI injured his ankle in July 2001 after a high-speed rollover car accident in Mexico in which the CI sustained multiple injuries.  The CI was treated with splinting and had his lacerations sutured in a Mexican hospital.  No antibiotics were administered.  Four days after the accident, he was transferred to a US Navy hospital.  He was found to have an open fracture of the right shin bone (tibia) and also a dislocation of the left ankle.  He underwent surgical repair of both injuries and skin grafting during his initial hospitalization.  Over the course of the next year he had multiple revision of the skin flaps.  The CI was placed on an initial 8-month period of limited duty (LIMDU) on 9 August 2001 and a second on 28 March 2002.  It was determined that near the end of the second LIMDU he required fusion of the left ankle and that he was not ready for medical discharge.  On 30 September 2003, 7 months prior to separation, the left ankle (tibiotalocalcaneal) was fused (arthrodesis).  Post-operative pictures for the VA Compensation and Pension C&P evaluation (below) the next day show the ankle in about 10-15 degrees of flexion.  The MEB examination and the MEB NARSUM were both accomplished prior to the fusion and are, therefore, not probative for rating purposes.  However, an addendum prepared on 4 December 2003, 4 months prior to separation, noted that he was doing well and was in no pain.  The incisions were well healed and motor function preserved.  Excellent healing was noted on X-ray.  Sensation was reduced in the distribution of one peripheral nerve, but otherwise intact.  The tibiotalar joint (ankle joint) had no motion (successful fusion), but the position was not recorded.  This implies, but does not explicitly state, that the ankylosis was favorable.  

At the VA C&P examination on 19 September 2004, 12 months after surgery and 5 months after separation, the CI reported swelling and pain with activity preventing prolonged standing, lifting, and pushing.  He could walk around the mall or around a Walmart before he needed to stop from pain.  He worked 20 hours a week as a mechanic, but was able to do most of his work sitting.  He also attended school.  He was not able to run.  No assistive devices were utilized.  The physical examination showed a fused immobile left ankle.  However, the position of the fusion was not recorded.  There was reduced muscle bulk in the left leg.  His gait was antalgic and he had difficulty with both toe and heel walking.  The scars and grafts were well healed.  The Board considered post-separation evidence of function since neither the MEB NARSUM nor the C&P recorded the position of fusion, although both noted adequate function relative to the proximity to surgery.  A primary care noted dated 27 August 2005, 16 months after separation, recorded that the CI had pain in his left ankle when he walked a lot, but otherwise felt fine.  A primary care note dated 7 December 2005 recorded that he was working as a park ranger.  A 6 February 2006 primary care visit noted that he had re-injured his left ankle.  He was bearing weight and doing well.  On 2 May 2006, he was working as a ranger and was in tech school and enjoyed fishing, going to the gym, and working on cars.  He was ambulatory and active.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left ankle condition 20%, coded 5270 (ankle, ankylosis) and  avascular necrosis of his talus with degenerative changes of the tibiotalar joint and subtalar joint as Category II, contributing to the unfit condition.  The VA rated the ankle condition 40% coded 5270 (ankle, ankylosis), based on the VA C&P examination 5 months after separation, citing the ankle was fused and immobile.  The Board first considered if the avascular necrosis was a separately unfitting condition and noted that the impairment from this condition could not be separated from the unfitting ankle fusion.  The Board noted that the 20% rating under the code 5270 is for fusion fixed in plantar flexion of 30 degrees or less.  A 40% rating is from plantar flexion fixed at more than 40 degrees or dorsi-flexion over 10 degrees, or with abduction, adduction, inversion, or eversion deformity.  The actual position of the fusion was not recorded, but the activity level and examination support plantar flexion being less than 30 degrees.  This is also consistent with pictures in evidence from the VA C&P examination.  The Board agreed that the examinations proximate to separation detailed above were consistent with a marked limitation of motion required for the maximum 20% rating under this code.  The PEB also listed degenerative changes as a related Category II condition (a condition that contributed to the primary unfitting condition but was not separately ratable).  The impairment from the degenerative changes were properly subsumed under the overall rating for the Category I unfitting condition IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  

The Board also considered the other ankle coding options, but none offered a higher rating and none better described the clinical picture.  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 ankle condition.

BOARD FINDINGS:  In the matter of the 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 20150429, with attachments
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 16 Nov 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:

		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC

						  XXXXXXXXXXXXXXXXXX
	     				               Assistant General Counsel
						  (Manpower & Reserve Affairs)