RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00704
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20020615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Administrative Clerk, medically separated for “bilateral ankle instability,” with a disability rating of 20%.

CI CONTENTION:  “Review all conditions.”  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical conditions at the time of separation.  The panel 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 panel 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 - 20010921	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Instability	5299-5003	20%	No VA Exam in Evidence	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Bilateral Ankle Instability.  The PEB combined the right and left ankle conditions as a single unfitting condition coded analogously to 5003 (arthritis, degenerative) and rated 20%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The panel also noted that “bundling,” the combining of two or more major joints may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the right and left ankle conditions are presented together, with attendant recommendations regarding separate unfitness and rating in the rating discussion.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI began experiencing bilateral ankle severe lateral instability approximately 3 years prior to referral for MEB.  He underwent serial Brostrom procedures (surgical repair of lateral ankle ligamentous structures) on his left ankle (January 2000) and right ankle (June 2000).  The CI was referred to the PEB for “bilateral ankle lateral instability.”  The PEB found “fit to continue on active duty” in November 2000.  

The 26 July 2001 NARSUM, 11 months before separation, recounted the history and interventions.  The CI complained of continued bilateral ankle pain, instability, and recurrent inversion injuries.  He was unable to return to running activities required for physical training and testing.  The CI did not experience significant improvement with surgery, physical therapy, braces, and home strengthening programs.  The physical examination documented a slightly antalgic (assuming a gait or posture to lessen pain) gait.  The bilateral ankle examination revealed no swelling or gross deformities.  The CI had excellent range of motion (ROM) of his ankles, with approximately 20 degrees of dorsiflexion (normal 20) and 60 degrees of plantar flexion (normal 45).  The CI had laxity (5 mm) on anterior drawer test (assesses integrity of anterior talofibular ligament) and has excessive subtalar motion.  His heels are set in valgus, from posterior visualization and was neurovascular intact distally.  The examiner reported radiographic (X-rays) studies showed a talar tilt on the right of 10 degrees and on the left of 13 degrees.  This was significantly improved when compared to his preoperative X-rays.  The diagnosis listed bilateral ankle instability, with continued pain, status post Brostrom reconstructions bilaterally.  The 24 August 2001 Report of Medical Examination documented ankle increased laxity on inversion, minimal pain with full ROM, and negative anterior drawer tests.  There was no VA Compensation & Pension examination in evidence, the CI did not submit a VA claim proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The panel must first considered whether each lower extremity condition remained separately unfitting, having been de-coupled from a combined PEB adjudication.  The PEB assigned a 10% for each ankle for a combined 20% rating, under an analogous 5003 code (arthritis, degenerative), citing bilateral ankle instability, with continued pain, status post Brostrom reconstructions bilaterally.  The ROM values in the examinations proximate to separation did not support a minimum rating under the ankle limited motion (5271) code.  There was no ankle ankylosis (5270), subastragalar or tarsal joint ankylosis (5272), os calcis or astragalus malunion (5273), excision of the astragalus (5274), or lower extremity bone shortening (5275) for consideration under the respective codes.  Panel members agreed a 10% rating was justified IAW §4.40 (functional loss) and §4.59 (painful motion).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral ankle condition.  

BOARD FINDINGS:  In the matter of the bilateral ankle condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150602, w/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 25 Apr 17

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

						      XXXXXXXXXXXXXXXXXX
	     				      	     Assistant General Counsel
  						    (Manpower & Reserve Affairs)