RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX                	                          	BRANCH OF SERVICE:  NAVY 
CASE NUMBER:  PD1100889 			                    	SEPARATION DATE:  20050330
BOARD DATE:  20120416

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty ABH1/E-6 (ABH-0000/Aviation Boatswain's Aircraft Handler), medically separated from the Navy in 2005.  The medical basis for the separation was left ankle joint arthrosis.  Despite extensive conservative treatment and three surgical procedures, he did not improve postoperatively sufficiently to perform within his Rating or meet physical fitness standards.  He underwent a Medical Evaluation Board (MEB) and was placed on limited duty (LIMDU) twice.  “Left ankle joint arthrosis and left ankle painful prosthesis” were then forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E.  No other conditions appeared on the MEB’s submission.  Other conditions included in the Disability Evaluation System (DES) packet will be discussed below.  The PEB adjudicated the left ankle arthrosis condition as unfitting, rated 10% and the left ankle painful prosthesis condition was rated category II, (contributing to the unfitting condition) with application of the Veterans Administration Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated with a 10% combined disability rating.

CI CONTENTION:  The CI states:  “While on active duty, I sprained my ankle.  The senior medical officer aboard the USS Harry S. Truman at the time was a physical therapist.  After looking at x-rays she concluded nothing was wrong and decided to take care of my sprain with physical therapy.  My ankle swelled every day and physical therapy was still administered including ice baths to bring the swelling down.  She told me she would not refer me to an orthopedic surgeon because she wanted to save the Navy money and an MRI would cost about $1000.   Seven months later, after she could not control the everyday swelling, she referred me to an orthopedic surgeon.  He ordered an MRI and told me the results were bad.  He said I had torn cartilage and a bone fragment that broke off when I sprained my ankle that was cutting my cartilage up for those seven months I was ordered to have physical therapy.  He also told me that if she would have sent me to an orthopedic surgeon as soon as it happened, simple arthroscopic surgery would have been conducted to clean out the torn cartilage and the bone fragment.  Consequently, I had to endure 3 surgeries in 3 years, one of which cartilage was taken from my left knee to replace the cartilage in my left ankle.  I was currently at 12 1/2 years of service and up for E-7.  Due to an overly assertive physical therapist, my career was ended and I was medically discharged with a 20% disability rating and severance pay.  It has been 6 years and I only receive a little over $100 in VA benefits for my injury.  In addition, my credited military service was cut short.  Therefore the option to complete my Naval career and retire from the military was taken away from me.  Currently I have continuous ankle pain that sometimes is only overcome with sleep.”  He additionally lists all of his VA conditions and ratings as per the rating chart below.  A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

Service PEB – Dated 20041207	VA (1 Mo. Pre-Separation) – All Effective 20050331	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Ankle Joint Arthrosis	5271	10%	Residual Status Post Left Ankle Ligamental Injury…	5271	10%	20050223	
Left Ankle Painful Prothesis	Category 2					
↓No Additional MEB/PEB Entries↓	Tinnitus	6260	10%	20050223	
	0% x 4/Not Service-Connected x 3	20050223	
Combined:  10%	Combined:  20%	

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the DES operates.  The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code).  The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation.  The Board also acknowledges the CI’s contention suggesting that service ratings should have been conferred for other conditions documented at the time of separation.  While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut  short a service member’s career, and then only to the degree of severity present at the time of final disposition.  The DVA, however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board also acknowledges the CI’s opinion that a service medical error was responsible for his disability, with the implication that the service disability rating should provide for remedy.  It must be noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to allegations regarding suspected service improprieties or faulty medical care.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB disability ratings and fitness determinations as elaborated above.  Redress in excess of the Board’s scope must be addressed by the Navy Board for Correction of Naval Records (BCNR).

Left Ankle Joint Arthrosis Condition:  The CI was first seen for left ankle pain in November 1992 after an inversion injury while “messing around.”  He was next seen in August 2001 after a re-injury while playing basketball.  X-ray taken in the emergency department was normal by report.  On follow up 2 days later, 27 August 2001, the CI gave a history of several prior sprains of the left ankle.  A second x-ray taken at the follow up visit was noted for a “questionable area” of the left medial talus that was possibly old osteochondritis dessicans (OCD) of the talus bone (ankle bone) as a result of prior ankle injury.  On examination, there was swelling and tenderness of the lateral ankle consistent with a lateral ankle sprain.  At that time there was no complaint of medial ankle pain.  He was treated conservatively and noted significant improvement when seen 20 September 2001.  There was no swelling, range-of-motion (ROM) was normal and gait was normal.  He was returned to full duty.  He noted recurrent pain, though, with the increased activity and again was treated in physical therapy on                           9 January 2002.  The following month, on 15 February 2002, he again injured his ankle slipping on a catwalk and reported medial ankle joint pain.  Concern for OCD was again noted and the CI was referred to orthopedics.  He was seen on 18 March 2002 and X-ray showed left medial talar OCD and was confirmed on magnetic resonance imaging.  A local steroid injection was unsuccessful.  At arthroscopy on 21 May 2002, he underwent OCD picking and a loose fragment from the OCD lesion was removed.  His symptoms persisted and he underwent a second procedure in September 2003 with an osteotomy (requiring placement of hardware) and implantation of a cartilage plug (harvested from the CI’s knee) in the OCD defect.  His symptoms were improved after this procedure and extensive physical therapy, but persistent symptoms prevented return to full duty.  It was thought that the prosthesis (hardware and cartilage implant) was causing continued symptoms and the deep cartilage implant and hardware were removed 13 July 2004 in his third and final surgery.  Six weeks after the final surgery (30 August 2004) orthopedic examination documented dorsiflexion of 0 degrees (normal 20 degrees), and plantar flexion of 30 degrees (normal 45 degrees).  A primary care visit on 23 November 2004, 4 months prior to separation, noted that he had chronic pain, but neither swelling nor erythema was noted.  ROM was noted to be mildly restricted, but specific measurements were not provided.  The VA Compensation and Pension (C&P) examination, accomplished 23 February 2005, a month before separation, was not separately available for review.  However, it is well detailed in the VA rating decision dated 8 December 2005.  Gait was noted to be normal as were reflexes and strength, and the scars were not tender.  Left ankle range of motion was “full” however there was pain at 15 degrees of dorsiflexion.  X-ray imaging of the left ankle was normal.  The PEB and VA both rated the ankle condition at 10% and coded it 5271 for limited motion of the ankle.  A 20% rating is assigned for marked limitation while a 10% rating is awarded for moderate loss of ROM.  The orthopedic examination 6 weeks after surgery showed moderate loss of motion.  The Board notes that the ROM was normal on the VA examination, however pain with motion was recorded, while the gait was normal.  After due deliberation in consideration of the totality of the evidence, the Board concluded that there was insufficient cause to recommend a change from the PEB fitness adjudication for the left ankle condition.

Other PEB Conditions.  The other condition forwarded by the MEB and adjudicated as not separately unfitting by the PEB was left ankle painful prosthesis.  Residuals of this condition, pain and decreased ROM cannot be separated from the unfitting condition.  IAW VASRD §4.14, avoidance of pyramiding, the same findings cannot be used for multiple conditions.  This condition was reviewed by the action officer and considered by the Board.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudication for any of the stated condition.

Remaining Conditions.  Other conditions identified in the DES file were a sinus infection, allergies, and a left knee condition.  The left knee condition refers to surgery to harvest donor articular cartilage for the ankle surgery, September 2003.  None of these conditions were clinically or occupationally significant during the MEB period, carried attached profiles, or were implicated in the commander’s statement.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  Additionally tinnitus and several other non-acute conditions were noted in the VA proximal to separation, but were not documented in the DES file.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  In the matter of the left ankle arthrosis condition, the Board unanimously recommends no change from the PEB adjudication.  In the matter of the left ankle painful prosthesis, the Board unanimously recommends no change from the PEB adjudication as category II.  In the matter of the sinus infection, allergies, and a left knee condition or any other condition eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: 

UNFITTING CONDITION	VASRD CODE	RATING	
Left ankle joint arthrosis	5271	10%	
Left ankle painful prosthesis	Category II	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110924, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	          XXXXXXXXXXXXXXXXXX
	           President
	           Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 2 May 12

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandum, approve the recommendations of the PDBR the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

-  XXXXXXXXXXXXXXXXXX former USMC   
-  XXXXXXXXXXXXXXXXXX former USMC
-  XXXXXXXXXXXXXXXXXX former USN, 
-  XXXXXXXXXXXXXXXXXX former USN,  
-  XXXXXXXXXXXXXXXXXX former USMC
-  XXXXXXXXXXXXXXXXXX former USN,  

						  XXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						   (Manpower & Reserve Affairs)