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-2017-00833

PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

{a) DoDI 6040.44
(b)	PDBR ltr dtd 4 Feb 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 rDBR 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:  XXXXXXXXXXXXXXXXXX	CASE: PD-2017-00833
BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20090706

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Surface Force Independent Duty Corpsman, medically separated for “bilateral ankle instability” with a disability rating of 20%.

CI CONTENTION: The CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) and 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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20090406	VARD - 20091006	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Ankle Instability	5099-5003	10%	S/P Right Ankle Reconstruction	5299-5271	0%	20090519	
	5099-5003	10%	Left Ankle Reconstruction	5299-5271	NSC	20090519	
Peroneal Tendon Adhesions on the Right	Cat II	

No VA Placement	
Tenosynovitis on the Right	Cat II		
Left Osteochondral Defect Lesion of the Talus	Cat II		
Peroneus Brevis Tear on the Right	Cat II		
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 40%	
	
ANALYSIS SUMMARY:
Bilateral Ankle Instability. The PEB listed bilateral ankle instability, however assigned separate

10% ratings (combined 20%) for an unfitting right ankle condition and an unfitting left ankle condition.  Therefore the conditions are addressed separately below.

Right Ankle. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent ankle surgery with repair of the lateral ligaments (modified Brostrom) and debridement and repair of the peroneus brevis tendon in June 2007. Following surgery the right ankle was stable, but the CI continued to report some peroneal tendon pain. In February 2008, the CI underwent a second ankle surgery and scar tissue of the peroneal longus and brevis tendons was lysed and a small remaining tear of the peroneal brevis was repaired. The CI again reported peroneal pain and a pulling sensation of the lateral aspect of her leg in February 2009. She received a corticosteroid injection and reported a 90% improvement in the pain, but the pulling sensation continued. An MRI on 11 February 2009 showed tendinopathy changes, without a clear tear of the peroneal tendons.

The 6 March 2009 MEB NARSUM examination, 4 months prior to separation, noted complaints of persistent peroneal related pain on the right without instability. The CI reported the pain increased during the day and with running, with a constant pulling sensation. She also reported some plantar surface pain. Physical examination showed incisions were well-healed with no erythema. Right ankle dorsiflexion (DF) was 20 degrees (normal) and plantar flexion (PF) was 45 degrees (normal). The CI complained of pain at the junction of the peroneal muscles and tendons with motion. There was no evidence of instability. Her strength to eversion was 4+/5, with no tenderness on the plantar side of her feet. The examiner noted the instability complaints were resolved. Possible additional surgery was discussed for the peroneal tendon pain, but the CI declined.  The CI had tolerable pain, but was unable to run.

At the 19 May 2009 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported pain on both sides of the right ankle. At the time of pain she could function with medication. She reported symptoms of weakness, stiffness, swelling, lack of endurance and fatigability. She denied heat, redness, giving-way, locking or dislocation. She was unable to stand or walk for prolonged periods. Physical examination showed a normal gait. The tibia and fibula were normal and there was no edema, effusion, weakness, tenderness, redness, heat, subluxation, guarding of movement or deformity. Bilateral DF was 20 degrees and bilateral PF was 45 degrees. The joint function was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Right tibia and fibula and right ankle X-rays showed post-operative changes without evidence of malunion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right ankle condition 10%, analogously coded 5099-5003 (degenerative arthritis). The PEB also listed “tenosynovitis,” “peroneal tendon adhesions,” and “peroneus brevis tear” as related Category II conditions that contributed to the primary unfitting right ankle condition, but were not separately ratable. The listed PEB Category II conditions were intrinsic to the unfitting right ankle condition and separate ratings cannot be supported without pyramiding (VASRD
§4.14); thus, they are appropriately subsumed in the rating for the right ankle. The VA rated the right ankle condition 0%, analogously coded 5299-5271 (ankle, limited motion), based on the C&P examination, citing no evidence of limited motion or painful motion.

There was no limitation of motion of the ankle joint to support a rating under diagnostic code 5271 (limitation of motion) and the C&P examination did not note the presence of painful joint motion. The gait was normal and there was no evidence of functional loss that would impact functioning in the average civil occupation. The panel considered alternative VASRD ankle and analogous codes, but all were less applicable and/or not advantageous to rating. Therefore no higher than a 0% rating was supported under any applicable VASRD code for the right ankle condition.

Left Ankle. According to the STR and MEB NARSUM, the CI underwent left ankle surgery in June 2008 with repair of the lateral ankle ligaments, osteochondral defect (OCD) debridement, micro facture (to repair OCD) and repair of a tear of the peroneal brevis tendon. Following rehabilitation left ankle instability and pain resolved.

The MEB NARSUM examination, 4 months prior to separation, noted no left ankle complaints. Physical examination showed well-healed incisions, a stable left ankle, but strength to eversion was graded 4+/5. Left ankle ROM was DF of 20 degrees and PF of 45 degrees. The examiner noted the instability complaints were resolved and the CI had “no complaints of the left, despite having an osteochondral defect.”

At the C&P examination, 2 months before separation, the CI reported pain on both sides of the right ankle. At the time of pain she could function with medication. She reported symptoms of weakness, stiffness, swelling, lack of endurance and fatigability. She denied heat, redness, giving- way, locking or dislocation. She was unable to stand or walk for prolonged periods. Physical examination was reported identically for the ankles with full ROM and no painful motion noted. There was no limitation due to pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Left ankle X-rays were also normal, without evidence of malunion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the left ankle condition 10%, analogously coded 5099-5003 (degenerative arthritis). The PEB also listed “left osteochondral defect lesion of the talus” as a related Category II condition that contributed to the primary unfitting left ankle condition, but was not separately ratable. As noted above, the impairment from the Category II condition was properly subsumed under the overall rating for the unfitting left ankle condition. The VA did not service connect the left ankle condition, citing no permanent residual or chronic disability subject to service connection was shown in the STR or during pre-discharge examination.

There was no limitation of motion of the left ankle joint to support a rating under diagnostic code 5271 (limitation of motion) and the C&P examination did not note the presence of painful joint motion. The gait was normal and there was no evidence of functional loss that would impact functioning in the average civil occupation. The panel considered alternative VASRD ankle and analogous codes, but all were less applicable and/or not advantageous to rating. Therefore no higher than a 0% rating was supported under any applicable VASRD code for the left ankle condition.

The panel agreed that no higher than a 0% rating was supported for each ankle. However, the panel may not recommend a lower combined rating than that of the PEB and therefore no change to the PEB’s rating for the right or left ankle conditions is recommended. 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 right or left ankle conditions.

BOARD FINDINGS: In the matter of the bilateral ankle condition 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.