DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET  SE  STE  309 WASHINGTON NAVY YARD, DC 20374

From: To: Subj:
Ref:

IN  REPLY  REFER TO:
1850
CORB:003
20 Feb 20 Director, Secretary of the Navy Council of Review Boards
PD-2017-00570
PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

(a)	DoDI  6040.44
(b)  PDBR  ltr dtd  3  Jan 19

1.	Pursuant  to  reference	(a),	the PDBR reviewed your case and forwarded its recommendation	(reference	(b))  to  the Department of the Navy.
2.	On 12 February 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned by  the  Department  of  the  Navy's Physical  Evaluation Board.
3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-00570
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20090830

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

CI CONTENTION:  “Torn ligament in left ankle.”  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB (Medical Evaluation Board), but determined by the Physical Evaluation Board (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 - 20090519	VARD - 20100315	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Left Ankle Pain ...	5099-5003	10%	Residuals, Left Ankle Injury …	5271	10%	20100222	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:

Persistent Left Ankle Pain. According to the service treatment record (STR) and MEB NARSUM, the CI fractured her left ankle during training in May 2007. This was complicated by nonunion of the lateral malleolus, and she underwent surgical intervention (Broström repair and excision) in June 2008 (14 months before separation). She suffered persistent post-operative pain and subjective instability that was not adequately responsive to conservative treatment and bracing, and reasonably declined further surgery. Follow-up X-rays showed normal alignment and hardware placement with no visualized fracture. Post-operative STR entries documented grossly normal range of motion (ROM) and the absence of any surgical complications gait disturbance, objective instability, or other VASRD-ratable findings.

The 19 March 2009 MEB NARSUM examination, 5 months prior to separation, documented left ankle pain, rated at 6/10, with subjective complaints of instability, swelling and locking that posed “difficulty with any strenuous activity” and prohibited running. The physical examination recorded “trace” edema, “mild” lateral tenderness, “mild” anterior laxity to stress testing, normal strength and “good” ROM. There was no service evidence for measured ROM, although the MEB’s DD Form 2808 physical examination documented pain with passive and active motion.

The 22 February 2010 VA Compensation and Pension (C&P) examination, 6 months after separation, noted CI’s complaints of “constant” pain, rated at 3-4/10, with continued subjective instability (not currently using brace) that limited prolonged walking or standing and prohibited running. The physical examination recorded a normal gait, no swelling, “significant” lateral tenderness, “mild anterolateral laxity” and normal (5/5) strength. Measured ROM was dorsiflexion to 20 degrees and plantar flexion to 45 degrees (both normal), specifying pain at end ranges, but no ROM degradation with repetition.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the left ankle condition 10%, coded 5099-5003 (analogous to degenerative arthritis), without citing criteria. The VA also rated the condition 10%, but coded 5271 (ankle, limited motion), based on the C&P examination and citing painful motion. Given the normal ROM and the absence of ankylosis or active fracture complications (nonunion, malunion), there is no other applicable joint code which would yield a rating higher than the PEB’s 10%. Members agreed that analogous rating for functional loss (via 5299-5283 or 5299-5262) could not be justified by objective evidence. There are no VASRD provisions for additional rating of ankle instability, nor was there evidence for significant disability attributable to objective ankle instability. After due deliberation, considering all 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 condition.

BOARD FINDINGS: In the matter of the persistent left ankle pain 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 20170214, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record