RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01090
BRANCH OF SERVICE:  USMC 	SEPARATION DATE:  20030831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E1, Marine Recruit, medically separated for “right ankle pronation, external rotation type IV fracture” with a disability rating of 20%.  

CI CONTENTION:  After discharge, he received no compensation, was unable to get the condition fixed and work due to disability.  The 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 condition(s) 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 - 20030711	VARD - 20040630	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Pronation, External Rotation Type IV Fracture, Right Ankle	5271	20%	Status Post Lateral Ankle Fracture With Syndesmosis Disruption	5271	0%	20040619	
Status Post Open Reduction Internal Fixation, Right Ankle	Cat II	No VA Examination in Evidence	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  0% 	

ANALYSIS SUMMARY:  

Right Ankle Pronation, External Rotation Type IV Fracture.  According to the service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI fractured his ankle in basic training on 12 May 2003 (14 weeks before separation).  He suffered a “slightly” displaced fracture of the distal fibula with some joint space widening, but no significant ligamentous injury or other complications.  He underwent an open reduction and internal fixation (with syndesmotic screw) the same day, and post-operative STR entries documented an uncomplicated course of recovery.  Pain was characterized as “minimal” and he progressed with weight bearing.  There was no further STR evidence documenting range of motion (ROM). 

The 19 May 2003 NARSUM examination, 3 months prior to separation, documented that the CI’s ankle remained splinted, but did not provide any additional probative findings.  Functional limitations were not specified, although the examiner opined that the CI “will be unable to fulfill his duties as an active duty Marine.”

At the 9 July 2003 orthopedic visit, 7 weeks before separation, the CI was in a cam walker (stabilizing removable boot) and partially weight-bearing.  The examiner noted some swelling, healed incisions, and “early good ankle and subtalar motion.” The last STR entry regarding the right ankle documented removal of the syndesmotic screw on 21 July 2003. 

The 19 June 2004 VA Compensation and Pension (C&P) evaluation, 10 months after separation, noted the CI “doing very well…walking as far as he wants to walk, although he states his ankle is not quite as normal as it was before surgery.”  He was employed in retail and able to walk “most of the day…[with] a small amount of stiffness…if he has been up on it doing heavy-type labor.”  Physical examination recorded a normal gait without use of a brace or assistive device, well healed incisions, no tenderness, and no joint instability.  Measured ROM was dorsiflexion to 20 degrees (normal) and plantar flexion to 35 degrees (normal 45), specifying the absence of painful motion or DeLuca degradation.  X-rays confirmed a healing fracture and good alignment.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating, coded 5271 (limitation of motion), did not cite a rationale, but was the maximum rating for “marked” limitation.  The PEB additionally adjudicated the surgical residuals (see rating chart) as a Category II condition (contributes to the unfitting condition but is not separately ratable).  Members agreed that this diagnosis was intrinsic to the rated condition and could not be separately rated without violation of VASRD §4.14 (avoidance of pyramiding); thus, it was appropriately subsumed in the same rating recommendation as that for the primary condition.  The VA’s 0% rating, based on the C&P evidence, was also under code 5271 and cited failure to satisfy the minimum 10% criterion of “moderate” limitation of motion.  Members agreed that given the absence of ankylosis or malunion, VASRD §4.71a offers no applicable joint code which would yield a rating higher than the PEB’s 20% rating.  Considering the degree of functional disability still present at separation (not fully recovered or completely weight-bearing), the panel considered whether a higher rating was justified via analogous rating under code 5262 (tibia and fibula, impairment of).  The latter offers ratings for contiguous ankle disability with a maximum of 30% for “marked” disability.  The panel agreed, however, that the decision to separate the CI prior to full recovery, given the circumstances, was a reasonable one.  The ratable permanent disability was therefore best reflected by the C&P evidence.  Furthermore, even if rating for the functional disability in evidence at separation were conceded as justifiable, members agreed that it could not be reasonably characterized as marked.  Rating under code 5299-5262 would thus not be advantageous.  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 of the right ankle condition.

BOARD FINDINGS:  In the matter of the right ankle condition (subsuming the Category II adjudication) and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.   There are no other conditions within the panel’s scope of review for consideration.
The panel, therefore, recommends 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 20150610, 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

      In accordance with reference (a), I have reviewed the cases listed below and 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:

		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC

		
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	     				     Acting