From: To:

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

IN   REPLY   REFER TO:
1850
CORB:003
20 Feb 20

Director, Secretary of the Navy Council of Review Boards 

PD-2017-01495

Subj: Ref:

PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

(a) DoDI 6040.44
(b)	PDBR ltr dtd 22 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 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:  XXXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-01495 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20051115

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

CI CONTENTION: “I do not agree with the rating, if I was rated this low I do not feel I would have been medically discharged.”  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 - 20050912	VARD - 20051213	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post-Traumatic Arthrosis, Bilateral Ankles	5299-5003	10%	Left Ankle Fracture	5271	0%	20050923	
			Right Ankle Bimalleolar Fracture	5271	0%	20050923	
Pes Planus Bilateral Feet	Cat II	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: 0%	
	
ANALYSIS SUMMARY:

Post-Traumatic Arthrosis, Bilateral Ankles. The PEB combined the left and right ankle conditions under a single disability rating, analogously coded 5299-5003 and rated 10%. This 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. 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 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.

According to the service treatment record and MEB narrative summary, the CI sustained bilateral ankle fractures after a HMMWV rollover accident. The right ankle required open reduction and internal fixation (ORIF) which was performed on 26 July 2004. Following recovery from surgery, the CI experienced persistent ankle pain. He was unable to complete physical fitness testing and was diagnosed with bilateral post-traumatic arthrosis of the ankles. No further surgical intervention was indicated. The non-medical assessment (NMA), dated 24 June 2005, implicated both ankles by noting the CI was unable to successfully perform his military duties due to injuries sustained in the HMMWV accident which caused the bilateral ankle fractures. The 15 September 2004 limited duty report (LIMDU) listed right bi-malleolar fracture and left calcaneal fracture.

During the 22 June 2005 MEB NARSUM examination, 5 months prior to separation, the CI complained of bilateral ankle pain rated between 4-6/10. Physical examination showed a stable gait and station. Pes planus was noted on both feet with some hyperpronation. There was no tenderness to the forefoot or hindfoot and no medial or lateral malleolar tenderness bilaterally, but there was diffuse tenderness over the anterior aspect of each ankle. Range of motion (ROM) testing showed full right ankle ROM, but there was about a 10 degree loss of dorsiflexion to the left ankle with full plantar flexion. There was no evidence of instability of either ankle and no gross malalignment. X-rays of the right ankle showed minor degenerative changes and the left ankle showed good alignment. The examiner noted the CI was unable to perform physical fitness testing since his ankle injuries and related the ankle pain to post-traumatic arthritis from the 2004 injury.

The 23 September 2005 VA Compensation and Pension (C&P) general examination, 2 months before separation, showed a normal gait. At the VA C&P joints examination on the same day, the CI reported bilateral ankle pain. He had not done any running or physical fitness training since his injury. For exercise, he used a stationary bicycle and elliptical machine. After 15 minutes on either, the CI said his ankle pain increased. His ankles would be stiff in the morning with the right ankle painful and then it would gradually improve. At nighttime, both ankles were painful. He was not taking medication for his ankles. On physical examination, both ankles were quite flexible and without swelling or tenderness. Bilateral ankle ROM was dorsiflexion of 30 degrees (normal 20) and plantar flexion of 45 degrees (normal) without pain or weakness. There was no crepitus with motion, the ligaments were intact and there was no laxity when stressed. There was no evidence of lack of endurance or coordination noted on the examination, and no restriction after repetitive use. No flare-ups occurred, other than daily symptoms.

The panel first considered if the right and left ankle conditions having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. Both ankles were noted on the LIMDU, both were implicated by the NMA and both were judged to fail retention standards. Following ORIF of the right ankle and immobilization of the left ankle without surgery, the CI continued to report bilateral ankle pain and was diagnosed by an orthopedic specialist with bilateral post-traumatic arthritis of the ankles. The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that each of the bundled ankle conditions was reasonably considered separately unfitting.

The panel then considered its rating recommendation for the unfitting ankle conditions at the time of separation based on the above evidence. As noted above, the PEB bundled the left and right ankles and applied a single 10% rating analogously coded 5299-5003 (arthritis, degenerative). The VA rated the left and right ankle conditions separately at 0% each, coded 5271 (ankle, limited motion of), based on the C&P examination, citing full painless ROM of the left and right ankles with no weakness, instability, crepitus, lack of endurance or lack of coordination.

Panel members considered the objective findings and associated disability for each ankle. At the VA examination, the most proximate examination to separation, there was no limitation of motion of either ankle joint to support a rating under diagnostic code 5271 (limitation of motion) and there was no evidence of painful joint motion. Therefore no higher than 0% rating was supported for either ankle. There was X-ray evidence of arthritis on the right, but not the left; however, the orthopedic specialist diagnosed post-traumatic arthritis of both ankles. Therefore, a 10% rating was supported for the bilateral ankle condition for arthritis of two or more major joints without limitation of motion. The panel considered alternative VASRD ankle and analogous codes, but all were less applicable and/or not advantageous to rating. After unbundling the ankles the panel found there was no higher rating than a combined 10% rating as adjudicated by the PEB and therefore no change is recommended to the PEB’s combined adjudication. After due deliberation, and considering all the evidence, the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the bundled ankle condition.

Contended PEB Condition: Pes Planus. The PEB listed the contended condition as Category II (a condition that is related to the primary unfitting condition and contributes to the primary unfitting condition). However, the condition was not integral to the unfitting diagnosis of post- traumatic arthrosis of the bilateral ankles. The panel’s main charge is to assess the fairness of the PEB determination that the condition was not a separately unfitting condition. In this circumstance the Cat II condition is considered reasonably unfit unless a preponderance of evidence shows it to be not unfit.

Bilateral pes planus was noted on the CI’s military enlistment physical dated 23 January 2002. At the MEB NARSUM examination there was no complaint of foot pain and the CI reported use of orthotics. Bilateral pes planus was noted with hyperpronation, but no swelling, tenderness of the forefoot, mid-foot or bottom of the foot or callosities were noted. The condition was not noted on the LIMDU form, implicated in the NMA or judged to fail retention standards. There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel concluded the preponderance of evidence indicated the Category II condition was not justified as separately unfitting and so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the bilateral ankle condition, the panel recommends no change in the PEB adjudication. In the matter of the bilateral pes planus condition, the panel agrees it cannot recommend it for additional disability rating. 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.