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DEPARTMENT OF THE NAVY

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

Director, Secretary of the Navy Council of Review Boards
PD-2017-04097

PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)
(a) DoDI 6040.44
(b) PDBR ltr of 19 Jul 19

IN REPLY REFER TO

1850
CORB:003
27 Feb 20

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

2,	On 21 February 2020, the Assistant General Counsel of the Navy (Manpower & Reserve Affairs) took action in your case by accepting the recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 0% to 10% without re-characterization of your discharge.

3.	For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	

The Assistant Secretary's determination, which represents  final action  in your case by the Department of the Navy, has been forwarded to the Deputy Commandant, Manpower and Reserve Affairs, for appropriate changes to your personnel records and notification to you upon completion.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-04097 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20060215

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Main Battle Tank Repairer/Technician, medically separated for “status post (S/P) motorcycle crash with right fibula and talar neck fractures along with left toe fractures and dislocations” with a disability rating of 0%.

CI CONTENTION:  No specific contention was made. 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 - 20060104	VARD - 20060606	
Condition	Code	Rating	Condition	Code	Rating	Exam	

Right Fibula and Talar Neck Fractures along with Left Toe Fractures and Dislocations	

5299-5003	

0%	Fracture Right Ankle with Residuals	5010-5271	10%	

20060511	
			Fracture Right Fibula Without Residuals	5262	0%		
			Fractured Toes Left Foot S/P with Residuals	5299-5284	0%		
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Right Fibula and Talar Neck Fractures along with Left Toe Fractures and Dislocations. The PEB combined the “right fibula and talar neck [ankle] fractures and left toe fractures and dislocations” under a single disability rating, coded analogously to 5003 and rated 0%. 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. The evidence for the right fibula and ankle fractures and left toe conditions is presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Right Fibula and Ankle Fractures. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s right lower extremity (LE) fractures condition began on 3 December 2004 after a motor vehicle accident (MVA). An orthopedic examination on 3 days later noted a right ankle sprain and a fracture of the mid-shaft of the right fibula without angulation or disruption of the ankle mortise and. The CI was given crutches and a wheel chair (due to left toe fractures as well). In January 2005, the CI reported worsened right ankle pain and a CT scan showed a non-displaced ankle (talar neck) fracture. After 10 weeks of immobilization, the CI reported moderate right ankle pain. At an orthopedic examination on 5 March 2005, fibula X- rays showed the fracture of the fibula shaft was healed without complications. Right ankle X- rays showed some degenerative changes and there was no collapse of the talus bone. At an orthopedic follow-up examination on 15 August 2005, the CI reported continued right ankle pain and a catching sensation after weight bearing for 2 hours. An MRI showed normal ankle and foot joints.  The talus was normal in appearance as were the ligaments and tendons.

The 5 March 2005 and 31 October 2005 limited duty reports (LIMDUs) listed right talus fracture and left small toe dislocation and instability. The 31 October 2005 non-medical assessment (NMA) noted the CI had missed 60 days due to convalescent leave and he was unable to perform the duties of his military specialty or perform physical training (PT) due to his condition. The NMA did not specifically identify the CI’s medical diagnoses.

At the 17 November 2005 MEB NARSUM examination, 3 months prior to separation, physical examination showed a normal gait and stance. Ankle range of motion (ROM) was dorsiflexion of 10 degrees and plantar flexion of 40 degrees, without painful motion or instability. There was tenderness of the medial malleolus. Strength and sensation were intact. The MEB examiner noted the CI was unable to run or stand longer than 2 hours.

At the 11 May 2006 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported residual pain of the entire right ankle. He reported flare-ups with running. He was not receiving any treatment at the time and did not use a cane or crutches. He reported he had no problems with daily activities. Physical examination showed no tenderness of the right leg. Right ankle ROM was dorsiflexion (DF) of 20 degrees and plantar flexion (PF) of 25 degrees. The CI had a normal gait. Right ankle X-rays noted old trauma of the inferior aspect of the medial malleolus and distal fibula and were otherwise negative.

The panel first considered if the right LE fractures, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The right ankle fracture was listed on the LIMDU, implicated in the NMA and failed retention standards. Although the NMA did not specifically identify the CI’s medical conditions, the right LE fractures were implicated by the NMA noting the CI was unable to perform daily PT, a fitness test, or be deployed and was missing work due to attending physical therapy. The panel concluded the right LE fractures were separately unfitting from the left toe fractures and dislocations.  The panel  next

considered if the two right LE fractures were each separately unfitting. Notes in the STR indicated the fibular fracture healed with good alignment and caused no disruption of the ankle joint. There was no evidence of unfitting residuals of the fibular fracture. The right ankle fracture was noted on the LIMDUs, but not the fibula fracture. The panel concluded the right ankle fracture condition was reasonably considered unfitting, but not the healed right fibular fracture.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the combined right fibula and ankle fractures along with left toe fractures and dislocations 0%, coded 5099-5003 (degenerative arthritis). The VA rated the right ankle condition 10%, coded 5010-5271 (traumatic arthritis-limitation of ankle motion), based on the C&P examination, citing moderate limitation of ankle motion. A 10% rating was supported, coded 5271 for moderate limitation of ankle motion as noted at the MEB NARSUM and VA examinations; there was no evidence of marked limitation of motion for higher rating. The panel considered other ankle and analogous codes, but all were less applicable and/or not advantageous for rating. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right ankle fracture condition, coded 5271.

Left Toe Fractures and Dislocations. According to the STR and MEB NARSUM, the conditions of the CI’s left toes began on 3 December 2004 after the same MVA noted above. An orthopedic examination on 6 December 2004 noted fractures of the proximal phalanges of the left third and fourth toes, and dislocation of the left fifth toe metatarsophalangeal joint, which had been reduced in the emergency room. The CI was given a post-operative shoe for the left foot and was non-weight bearing due to additional right LE injuries as noted above. At the podiatry examination on 5 April 2005, the CI reported persistent left toe pain. Physical examination showed there was prominence of the plantar aspect of the fifth metatarsal head with tenderness. Padding was tried without relief and on 26 August 2005, the CI underwent surgery for open reduction and internal fixation of the left fifth MTP joint. At the time of surgery, significant joint injury was noted (cartilage loss/erosion and arthritis) and MTP joint arthroplasty was performed. At a follow-up podiatry visit on 28 September 2005 the CI presented with no complaints. Foot X-rays showed the toe was in good alignment. The CI was to start gradual return to use of a regular shoe.

The 17 November 2005 MEB NARSUM examination, 3 months prior to separation, noted that at the last orthopedic visit on 21 October 2005, the CI reported the toe was doing better since surgery, without much pain. At the 11 May 2006 VA C&P examination, 3 months after separation, the CI reported the left toe surgery helped to some degree but he continued to have problems with the left foot. Physical examination showed no deformity of the left foot. There was full ROM of the first through fourth toes. There was no movement of the fifth toe. Weight bearing was good and the CI’s gait was normal. Left foot X-rays showed old trauma of the MTP joint of the fifth toe with possible surgery of the distal metatarsal. There were no acute boney processes noted.

The panel first considered if the left toe conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The left small toe dislocation/instability condition was listed on the LIMDUs, implicated in the NMA and failed retention standards. Although the NMA did not specifically identify the CI’s medical conditions, the left small toe condition was implicated by the October 2005 NMA noting the CI was unable to perform daily PT, a fitness test, or be deployed and the CI had recently had surgery on the left foot. The panel concluded the left toe conditions were reasonably considered separately unfitting from the right ankle fracture. The panel next considered if each of the left toe fractures (third and fourth toes) and dislocations (fifth toe) were separately unfitting. Notes in the STR indicated the third and fourth toe fractures healed without residuals. The CI’s complaint proximate to separation was the left fifth toe pain.  The two LIMDUs noted the left fifth toe

condition, but not the fractures of the third and fourth toes. The panel concluded the left fifth toe dislocation was reasonably considered unfitting, but not the healed toe fractures.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the combined right fibula and talar neck fractures along with left toe fractures and dislocations 0%, coded 5099-5003 (degenerative arthritis). The VA rated the left toe conditions 0%, coded 5299-5284, based on the C&P examination, citing, “a noncompensable evaluation assigned because the foot injuries are not found to be moderate. Following surgery at the VA examination, no motion of the small toe MTP joint was noted, but there is no VARSD rating for limitation of a single toe, other than the great toe (hallux rigidus). There was no malunion or nonunion of the fifth metatarsal for consideration of a rating under 5283 (tarsal or metatarsal bones, malunion of, or nonunion). Members agreed that the CI’s residual disability due to the left fifth toe could not be characterized as a moderate foot injury for a higher rating under 5284 (other foot injury). The panel considered other VASRD 4.71a foot codes, but all were less applicable and/or not advantageous for rating. There was therefore no higher rating than 0% under any applicable VASRD §4.71a code. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the left fifth toe condition, coded 5284.

BOARD FINDINGS: In the matter of the right fibula and talar neck fractures along with left toe fractures and dislocations, the panel recommends that each joint be separately adjudicated as follows: an unfitting right ankle fracture condition, coded 5271, and rated 10%, and an unfitting left fifth toe condition, coded 5284 and rated 0%, both IAW VASRD §4.71a. There are no other conditions within the panel’s scope of review for consideration.

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Right Ankle (Talar Neck) Fracture	5271	10%	
Left Fifth Toe Dislocation	5284	0%	
	COMBINED	10%