RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2016-01200
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20041129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E3, Rifleman, medically separated for “bilateral ankle instability and pain, status post bilateral ankle ligament reconstructions” rated 0% and 10%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20041005	VARD - 20050916	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Instability and Pain…	5299-5271	10%	Right Ankle Ligament Reconstruction	5099-5024	10%	20050802	
			Instability, Right Ankle	5271	10%	20050802	
		0%	Left Ankle Ligament Reconstruction	5099-5024	10%	20050802	
			Instability, Left Ankle	5271	10%	20050802	
Intermittent Low Back Pain	Not Unfitting	Low Back Strain	5237	NSC	20050802	
Left Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	NSC	20050407	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Bilateral Ankle Instability and Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent ligament reconstructive surgery for the left ankle in February 2003 and for the right ankle in September 2003.  At the 20 August 2004 MEB NARSUM examination, 3 months prior to separation, the CI reported an inability to stand for longer than 10 minutes without pain and numbness in his leg and foot (no further specification).  He also was limited in his ability to run, walk upstairs, drive for long periods or lift weights with his lower body.  Physical examination showed bilateral ankle pain without swelling or edema.  Bilateral ankle range of motion (ROM) testing showed dorsiflexion to 20 degrees (normal) and plantar flexion to 50 degrees (normal 45); painful motion was not addressed.  Anterior drawer testing revealed 2+ on the right and 3+ on the left. Talar tilt was positive bilaterally.   

At the 2 August 2005 VA Compensation and Pension (C&P) examination, 9 months after separation, the CI reported constant left and right ankle pain with activity, left ankle locking and leg cramps, and functional impairment during prolonged walking or standing. Physical examination revealed bilateral ankle laxity to medial stress.  Right ankle dorsiflexion was to 20 degrees, with pain at 15 degrees, and plantar flexion to 40 degrees, with pain starting at 25 degrees.    Left ankle ROM showed dorsiflexion to 15 degrees, with pain beginning at 5 degrees, and plantar flexion to 45 degrees, with pain at 15 degrees.  Both ankles were additionally limited after repetitive use with pain having the major functional impact.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral ankle condition 0% and 10% (without specifying right or left), analogously coded 5299-5271 (ankle, limited motion).  The VA rated status post right and left ankle ligament reconstruction instability, 10% each, analogously coded 5099-5024 (tenosynovitis), based on the C&P examination, citing ankle laxity to medial stress.  The VA also rated right and left ankle instability 10% each coded 5271 (ankle, limited motion), based on the C&P examination, citing right and left ankle ROM measurements (as noted above) limited by pain, fatigue, weakness and lack of endurance after repetitive use (amount of limitation not addressed).

Members noted that both ankles were considered to fail retention standards, implicated by the NARSUM, and profiled.  The non-medical assessment (NMA) did not specify ankle issues, but did note the CI’s “medical condition” prevented him from training and performing.  While the NARSUM examination recorded positive anterior drawer and talar tilt in both ankles, and the VA examination noted laxity and painful motion, member agreed that there was no limitation of dorsiflexion or plantar flexion that supported a rating under VASRD diagnostic code 5271. However, there was functional loss in both ankles due to instability, pain with use and painful motion, which supported a 10% rating for each ankle IAW §4.40, §4.45 and §4.59.  The panel considered alternative VASRD ankle and analogous codes, but all were less applicable and/or not advantageous to rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for each ankle, coded 5299-5271 for a combined rating of 20%.  

Contended PEB Conditions:  Intermittent Low Back Pain and Left Hearing Loss.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The back condition was not profiled or specifically implicated in the NMA and did not fail retention standards.  The left hearing loss was profiled, however it was not implicated in the NMA.  There was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions, so no additional disability ratings are recommended.   

BOARD FINDINGS:  In the matter of the right and left ankle conditions, the panel recommends a disability rating of 10% each, coded 5299-5271 IAW VASRD §4.71a.  In the matter of the contended intermittent low back pain and left hearing loss, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Ankle Instability and Pain	5299-5271	10%	
Left Ankle Instability and Pain	5299-5271	10%	
COMBINED	20%	

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs) COMMANDER, NAVY PERSONNEL COMMAND
Subj:		PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS Ref:	(a) DoDI 6040.44
(b)	(i) PDBR ltr dtd 18 Oct 18 ICO XXXXXXXXXX

l.	

Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (k) are approved.The official records of the following individuals are to be corrected as follows:

a.	XXXXXXXXXX: Entitlement to disability separation pay with a 20 percent disability rating (increased from
10 percent) effective date of discharge.
3.	Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.