RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 	CASE: PD-2012-01892
BRANCH OF SERVICE:  NAVY		BOARD DATE:  20140409
SEPARATION DATE:  20030411

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Petty Officer Third Class/E-4 (EM4/Electrician’s Mate) medically separated for a left ankle condition.  He was treated, but his ankle condition could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards.  In October 2001, he underwent a Medical Evaluation Board (MEB).  The left ankle condition was referred to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The PEB found the left ankle condition unfitting, rated 10%.  The CI requested retention on permanent limited duty (LIMDU) until his term of service expired.  This was approved, and a second PEB was convened in October 2002.  The left ankle condition was once again found unfitting and rated at 10%. He was medically separated in April 2003 with a 10% disability rating.

CI CONTENTION:  “I believe the rating was inaccurate for my ankle because it took them approximately 8 months after the incident to do surgery because they thought it was a high ankle sprain only, which caused my ankle to get worse.  I was on a cane for two years after surgery and still to this day it cause problems in my daily life.  They never rated me for my knees, finger, sinuses and back which prevented me from continuing serving on a ship.  My command wanted me to do a cross rate and did the paper work in order for me to stay in the Navy and do shore duty, it was denied Medical board because of sea duty obligations also I didn't get a chance to go in front of them appeal because the people who was handling my case wasn't giving me good information so I was Medical Board out in Japan and was sent to San Diego to process out.”

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting left ankle condition is addressed below.  The requested knees, finger, sinuses and back conditions were not identified by the MEB/PEB and thus are not within the DoDI 6040.44 defined purview of the Board.  No other conditions are within the Board’s defined DoDI 6040.44 purview.  Any conditions outside the Board’s defined scope of review may be eligible for future consideration by the Board for Correction of Naval Records.

RATING COMPARISON:

Navy PEB – dated 20021021	VA – (Based on Service Treatment Record)*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Ankle Condition	5010-5003	10%	Left Ankle Condition	5010-5271	10%	STR	
No Additional MEB/PEB Entries	Other x 8	STR 	
Rating:  10%	Combined Rating:  40%	
*Derived from VA Rating Decision (VARD) dated 20031006 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate 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.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Left Ankle Condition.  In August 2000, the CI was injured while playing soccer.  He was diagnosed with a left ankle sprain.  He received treatment for the injury, including surgical repair and two periods of LIMDU.  However, his left ankle pain persisted and an MEB was initiated.  The MEB narrative summary was dictated on 26 October 2001.  At that time, he was in no acute distress, but he walked with a slight limp.  Physical exam (PE) of the left ankle revealed a negative anterior drawer sign.  Neurovascular status was intact and X-rays showed symmetric joint space.  Range-of-motion (ROM) was measured and is summarized in the chart below.  The CI was medically separated in April 2003 and was scheduled for a VA Compensation and Pension (C&P) exam on 5 June 2003, but he failed to appear for that evaluation.  He did have a C&P exam in May 2004, more than 12 months after separation.  At that time, his gait was normal.  PE of the left ankle revealed tenderness in the region of the anterior talofibular ligament.  The ankle however, was stable with a negative anterior drawer and a negative lateral tilt test.  The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Left Ankle ROM
(Degrees)	NARSUM ~ 18 mos. Pre-Sep
(20011026)	VA C&P ~ 12½ mos. Post-Sep
(20040501)	
Dorsiflexion (20 Normal)	10	10	
Plantar Flexion (45)	35	30	
§4.71a Rating	10%	10%	

The Board carefully reviewed all available evidence and directs attention to its rating recommendation.  The Navy PEB and the VA chose different coding options for the left ankle condition, but both assigned a disability rating of 10%.  Based on the evidence in the treatment record, and IAW VASRD §4.71a, the Board determined that the CI’s limitation of ankle motion was best described as “moderate.”  The record did not show sufficient evidence to characterize his limited ankle motion as “marked.”  After due deliberation, the Board determined that a disability rating of 10% for the left ankle was warranted.  The Board tried to find a path to a higher rating using other codes which could be applied to the ankle condition.  The other VASRD codes that were considered did not result in a higher rating.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left ankle condition.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the left ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 201201892, 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 15 Dec 14

      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 that 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:

- XXXXXXXXXXXXXX, former USN    
- XXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC 

						  XXXXXXXXXXXXXX
	     				  Assistant General Counsel
			(Manpower & Reserve Affairs)