RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-02807 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20090330

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Legal Services Specialist, medically separated for “chronic post-operative pain, S/P [status post] excision of trigonum, right foot” and “degenerative joint disease of the right hip,” rated 10% each, with a combined  disability rating of 20%.

CI CONTENTION: “Being actively seen for additional issues” 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 (PFR) - 20090123	VARD - 20090514	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Post-Operative Pain, S/P Excision of Trigonum, Right Foot	5099-5003	10%	S/P Operation of Right Ankle with Residual Ankle Strain	5299-5271	10%	20090113	
Degenerative Joint Disease of the Right Hip	5099-5003	10%	Right Hip Strain	5299-5255	10%	20090113	
Limb Length Discrepancy	Cat II	No VA Placement	
Weakness to the Right Rear Foot	Cat II	No VA Placement	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 80%	

ANALYSIS SUMMARY:

Chronic Post-Operative Pain, S/P Excision of Trigonum, Right Foot. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s foot condition began in late October 2005 with no specific injury.  The CI underwent right ankle surgery in October 2006

for excision of trigonum.   Following surgery, the CI reported right rear-foot pain.   During the   27 March 2008 MEB NARSUM examination, 12 months prior to separation, the CI com complained of daily foot pain, 2-3/10 that could shoot up to 5-8/10 with strenuous activity. Physical examination revealed a well-healed surgical scar with mild focal numbness, absence of swelling, and no tenderness of the ankle tendons. There was full ankle range of motion (ROM), and normal motor strength, but his gait was slightly antalgic. The 17 April 2008 physical therapy (PT) right ankle ROM study, 11 months prior to separation showed dorsiflexion of 10 degrees (normal 20) and plantar flexion to 40 degrees (normal 45). During the 22 April 2008 MEB examination (recorded on DD Forms 2807-1 and 2808) the CI reported constant foot trouble and pain. Physical examination noted foot pain with dorsiflexion and plantar flexion. ROM was not recorded.

At the 13 January 2009 VA Compensation and Pension (C&P) examination, 2 months prior to separation, the CI reported constant pain in the soles of his feet, during rest and activity. Physical examination showed ankle tenderness and no deformities. Right ankle showed 18 degrees of dorsiflexion and 30 degrees of plantar flexion.  Painful motion was present.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right foot condition 10%, analogously coded 5099-5003 (arthritis, degenerative). The PEB listed weakness to the right rear foot as a related diagnosis (Category II) contributing to the disability in this case. The panel concluded the weakness to the right rear foot was not a separate condition which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without pyramiding (VASRD §4.14). The VA also rated the right foot condition 10%, analogously coded 5299-5271 (ankle, limited motion of) based on the C&P examination, citing painful and limited motion.

There was evidence of painful motion causing functional loss supporting the 10% rating adjudicated by the PEB. All panel members agreed the limitation of motion was no more than “moderate,” supporting a 10% rating under code 5271, but the application of this code provided no rating benefit to the CI. A higher rating of 20% was not justified in the absence of “marked” limited ROM of the ankle. The panel also considered whether the VASRD code for other foot injuries (5284) provided for a higher rating (§4.7). However, all panel members agreed that the impairment did not more nearly approximate “moderately severe” to support the next higher 20% rating under that 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 right foot condition.

Degenerative Joint Disease of the Right Hip. According to the STR and MEB NARSUM, the CI’s hip condition began in 2007 after physical training without identifiable trauma. Right hip MRI and X- rays were negative for pathology of the hip. The MEB NARSUM examination noted complaints of chronic low back and knee pain. The examiner stated the CI was diagnosed with having “what appears to be like a hip dislocation syndrome.” No further comment was made regarding the hip, and physical examination was confined to the right foot condition. At the 15 April 2008 orthopedic clinic visit, 11 months prior to separation, the CI reported hip pain with the ability to self sublux the right hip posteriorly. During the 2 July 2008 medical clinic visit, 8 months prior to separation, the CI reported worsening of the bilateral hips, but had not had any treatment for the pain. Physical examination of the right hip showed tenderness about the hip, and decreased ROM. The examiner noted the hip was subluxing. The 10 October 2008 PT ROM study for the MEB, 5 months prior to separation, documented right hip flexion to 108 degrees (normal 125), extension to 22 degrees (normal 30) and abduction of 52 (normal 45).

At the C&P examination the CI reported constant pain in the right hip with weakness, giving way, lack of endurance, locking, fatigability and dislocation.  Physical examination showed a   normal

gait and equal leg length bilaterally. The hip was tender on the right. Hip flexion was to 120 degrees with pain, normal extension and 35 degrees of abduction.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right hip condition 10%, analogously coded 5099-5033 (arthritis, degenerative). The PEB listed limb length discrepancy as a related diagnosis (Category II) contributing to the disability in this case. The panel concluded the leg length discrepancy was not a separate condition which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without pyramiding (VASRD §4.14). The VA also rated the right hip condition 10%, analogously coded 5299-5255 (femur, impairment of), based on the C&P examination, citing painful motion. There was no limitation of flexion, extension or abduction that supported a rating under the VASRD diagnostic codes for limitation of motion (5251, 5252, 5253). There was no fracture, nonunion, or malunion of the femur to support consideration under the 5255 code. However, there was evidence of painful limitation of motion to warrant a 10% rating. 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 hip condition.

BOARD FINDINGS: In the matter of the right foot condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the right hip 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.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170316, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN   REPLY  REFER  TO :
1850
CORB: 003 20May20

From: 

Director, Secretary of the Navy Council of Review Boards 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr <ltd 21 Apr 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate action.

2.	On 20 March 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.