RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01393
BRANCH OF SERVICE:  MARINE CORP	SEPARATION DATE:  20040229

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E2, Basic Engineer (Construction, Facilities, and Equipment), medically separated for “multiple fractures of feet and ankles” with a disability rating of 10%.   

CI CONTENTION:  “Rating differs from the Veterans Affairs Schedule for Rating Disabilities.”  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 -20040120	20040506	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Multiple Fractures  of Feet and Ankles	5299-5003	10%	Right Ankle Fracture and Foot Fractures, Status Post Open Reduction Internal Fixation with Residual Arthritis	5010-5284	20%	20040203	
			Left Ankle and Foot Status Post Traumatic Injury with Residual Arthritis	5010-5284	10%	20040203	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Multiple Fractures of Feet and Ankles.  The PEB combined the right and left foot and ankle conditions as a single unfitting condition coded analogously to 5003 (arthritis, degenerative) and rated 10%.  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 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 feet and ankle conditions are presented together, with attendant recommendations regarding separate unfitness and rating in the rating discussion.

According to service treatment record and MEB narrative summary (NARSUM), the CI’s feet and ankle conditions began on 25 January 2003 after he was involved in a roll-over motor vehicle accident (MVA) and his seatbelt failed.  He sustained fractures of the right distal tibia and fibula as well as the second, third and fourth metatarsals, and dislocation of the right fifth metatarsophalangeal (MTP) joint.  He also suffered fractures of the talus and fifth metatarsal on the left foot.  On the day of the MVA, he underwent open reduction with internal fixation of the right ankle fractures and closed reduction of all of the other fractures.  He was initially confined to a wheelchair for the first 5 months after the injury, but with extensive therapy he was able to return to walking and even running.   

At a 17 July 2003 orthopedics follow-up appointment with the operating surgeon, 7 months prior to separation, the CI reported he was able to run but had left calf tightness at ¾ of a mile.  He also noted his hardware being “symptomatic” (presumably painful).  Physical examination showed the surgical wounds “looked good” with some swelling of the right mid-foot.  X-rays demonstrated that all fractures were healed.  The surgeon concluded the CI had no limitations and recommended he wait until 1 year after the injury before having the hardware removed.    

The 13 October 2003 MEB NARSUM examination, 4 months prior to separation, noted complaints of weakness with decreased range of motion (ROM) of both feet and ankles and the inability to stay on his feet for extended periods.  Physical examination of the feet and ankles was not accomplished and the NARSUM writer referred to the 17 July 2003 orthopedics visit.  

During the 4 November 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months before separation, the CI reported he was unable to run and that orthopedic hardware was rubbing on his boot.  Physical examination showed decreased bilateral ankle ROM to inversion and eversion with no measurement of dorsiflexion or plantar flexion.  There was right distal tibia and fibula tenderness as well as along the metatarsals (did not specify which foot or both).  

At the 3 February 2004 VA Compensation and Pension (C&P) evaluation, 1 month prior to separation, the CI reported discomfort in both ankles with any prolonged standing, running or carrying items.  He related being about to function fairly well and could run 1½ miles before right ankle swelling; however, he was not able to walk l on uneven ground without pain in both ankles.  Physical examination showed a normal gait and “good” bilateral ROM with no tenderness over the previous fracture sites.  The left ankle dorsiflexed to 10 degrees (normal 20, although the examiner cited 15 degrees as normal) and plantar flexed to 45 degrees (normal, the examiner cited 50 degrees as normal).  There was crepitus and discomfort with rotatory movement of the left ankle.  The right ankle also dorsiflexed to 10 degrees and plantar flexed to 35.  The examiner noted some right ankle discomfort on passive dorsiflexion, but no other painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bundled multiple fractures of the feet and ankles condition 10%, coded 5299-5003 (analogous to degenerative arthritis), citing weakness and decreased ROM.  The VA rated the right foot and ankle fracture condition 20% and the left foot and ankle fracture condition 10%, both dual coded 5010-5284 (arthritis due to trauma-foot injuries, other), based on the C&P evaluation, citing moderately severe symptoms on the right and limitation of ROM on the left.  

The panel first considered if each foot and ankle condition, when decoupled from the combined PEB adjudication, remained separately unfitting as established above.  Both feet and ankles were considered to fail retention standards and were implicated in the NARSUM as well as the MEB examination.  The non-medical assessment and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either foot and ankle over the other.  Since undue speculation would be required to conclude that impairment from either foot and ankle would not have unacceptably interfered with specialty performance, members agreed that each foot and ankle was reasonably justified as separately unfitting.  The panel further considered if either foot condition could be additionally separated from the ankle conditions.  Members agreed that any disability derived from either foot is integral to the disability of the ankles and could not be separated without violating VASRD §4.14 (pyramiding) and therefore, could not recommend disability ratings for each foot in addition to each ankle.  The panel then considered its rating recommendation for each unfitting foot and ankle based on the above evidence.  

There was no evidence of malunion or nonunion of tarsal or metatarsal bones (5283), talus (5273) or tibia and fibula (5262) to justify a rating under the respective codes for either foot or ankle.  There was no ankylosis of either ankle (5270), subastangalar or tarsal joints (5272).  Although there were bilateral foot injuries, by the time of separation, the conditions had sufficiently improved such that panel members agreed neither rose to the level of a “moderate” 20% rating under code 5284.  While there was insufficient limitation of motion to justify a rating using code 5271, there was evidence of painful motion with functional loss in the both ankles supporting a 10% rating (based on §4.59, §4.40 and §4.45) coded analogously to 5271.  After due deliberation, considering all of the evidence, the panel recommends a separately unfit determination with a disability rating of 10% for each of the multiple fractures of the feet and ankles.  

BOARD FINDINGS:  In the matter of the multiple fractures of the feet and ankles and IAW VASRD §4.71a, the panel y recommends that each foot and ankle be separately adjudicated as follows: an unfitting right foot and ankle condition and an unfitting left foot and ankle condition, both coded 5299-5271 and rated 10% each IAW VASRD §4.71a.  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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Multiple Fractures of the Right Ankle and Foot	5299-5271	10%	
Multiple Fractures of the Left Ankle and Foot	5299-5271	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161005, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

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

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

a.	XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.

b.	XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from
10 percent) effective date of discharge.

c.	XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

d.	XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

e.	XXXXXXXXXXXXXXXXXX, former USN: Entitlement to  disability separation pay with a 20 percent disability rating (increased from
10 percent) effective date of discharge.

f.	XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from
10 percent) effective date of discharge.

g.	XXXXXXXXXXXXXXXXXX, former USMC: 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 thoseact