RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-00306
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20090629

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E3, Military Policeman, medically separated for “left ankle pain and instability” with a disability rating of 10%.  

CI CONTENTION:  “Was rated as 10%.  VA rating a 40%.  Seems like a sizable difference.  Please review my rating.”  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 - 20090422	VARD - 20100305	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Ankle Pain and Instability	5099-5003	10%	Left Ankle Ligament Injury, Status Post-Surgical Repair	5024	10%	20090720	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Left Ankle Pain and Instability.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent left ankle surgeries in November and December 2008 for excision of an osteochondral defect and two ligament reconstructions, respectively.  The 25 February 2009 MEB NARSUM examination, 4 months prior to separation, noted complaints of outer left ankle pain when he twisted his foot sideways, navigated stairs, or wore tight shoes; pain was alleviated by ice, tight wrap, and rest.  Physical examination showed an antalgic gait, mild edema laterally, tenderness, and decreased eversion.  Muscular strength was decreased in all directions; range of motion (ROM) measurements were not recorded.  

During the 9 March 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months before separation, the CI reported left foot numbness.  Physical examination showed a mildly antalgic gait and ankle strength was 4/5; ROM measurements were not recorded.  The 22 May 2009 MEB physical therapy evaluation, 1 month prior to separation, recorded complaints of left lateral ankle pain.  The therapist noted the CI was in a cast until January 2009 and in a brace since then.  Physical examination showed an antalgic gait.  Dorsiflexion was 0 degrees (normal 20), with pain, plantar flexion was not recorded, and there was severe pain with eversion.  

At the 20 July 2009 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported intermittent swelling that occurred at the end of the workday, and aching pain that radiated from the ankle up to the leg; he denied instability.  Physical examination showed an antalgic gait and left ankle tenderness.  Bilateral ROM revealed dorsiflexion to 10 degrees and plantar flexion to 45 degrees (normal).  There was no pain with ROM and no additional loss of motion with repetition; muscle strength was 5/5.  Left ankle X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left ankle condition 10%, analogously coded as 5003 (degenerative arthritis).  The VA also rated the left ankle condition 10%, but coded 5024 (tenosynovitis), based on the C&P examination, citing objective evidence of limited ankle motion.  Members deliberated over whether the ankle limitation of motion met “moderate” or “marked” criteria under code 5271 (limitation of ankle motion).  The panel placed higher probative value on the VA examination because of its distance from the last surgery, and agreed that the ROM measurements, presence of an abnormal gait, and reports of swelling at the end of the day, were most consistent with a “moderate” limitation of motion for a 10% rating.  Because there was no ankylosis (5270), or nonunion/malunion (5262), VASRD §4.71a offers no applicable joint code which would yield a higher rating.  The panel also considered whether the VASRD code for other foot injuries (5284) provided for a higher rating (§4.7).  However, members agreed that the impairment did not approximate “marked” to support a 20% rating under this code.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the left ankle pain and instability condition.  

BOARD FINDINGS:  In the matter of the left ankle pain and instability and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends 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 20170207, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190001303, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.