RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xx	CASE NUMBER:  PD1201144
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20130808
Separation Date:  20030715

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty (HM3/E-4/Hospital Corpsman), medically separated for a left ankle condition.  The CI fractured her left ankle during a hospital softball game.  She underwent a left ankle open reduction internal fixation (ORIF) surgery with two subsequent surgeries.  Despite extensive physical therapy (PT), non-steroidal anti-inflammatory drugs (NSAIDs), and various treatment modalities, the CI failed to meet the physical requirements of her rating or physical fitness standards.  She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The left ankle condition, characterized as “status post (s/p) left ankle closed bimalleolar fracture” was forwarded to the Physical Evaluation Board (PEB).  No other conditions were submitted by the MEB.  The PEB adjudicated “s/p left ankle bimalleolar fracture” as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “At the time of my discharge, I was granted the above disability rating since plus I was not evaluated adequately due to the severity of my condition.  I didn’t realize at the moment how this condition was going to aggravate thought time with debilitating secondary effects.  I believe that the Decision Board didn't take in consideration all the medical evidence in my favor thus making an erroneous decision; in this case: "when the disability was likely to have occurred or was aggravated, rather than make the assumption it occurred when the claim was originally filed, in addition this is a "faulty decision" because it is unreasonable to accept and assumed that I became disabled the day I filed the date of medical C&P Exam.”  I believe I am entitled to complete and appropriate medical examination in regards to my debilitating conditions.  See 38 C.F.R. §§ 4.6, 4.23, 4.70.”

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; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention either not requested in this application or otherwise outside the Board’s defined scope of review remain eligible for future consideration by the Board for Correction of Naval Records (BCNR).

RATING COMPARISON:

Service IPEB – Dated 20030410 | VA - (1 Mo. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Status Post Left Ankle Bimalleolar Fracture | 5299-5003 | 10% | Bimalleolar Fracture with Open Reduction and Internal Fixation of Distal Fibula and Mild Malleolus Deformity, Left Ankle | 5271 | 20% | 20030820
No Additional MEB/PEB Entries | Other x 3 | 20030814to 20030825
Combined:  10% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20030917.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that her disability disposition was inadequately evaluated.  However, it is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCNR and/or the United States judiciary system.  The Board also acknowledges the CI’s information regarding the significant impairment imposed by her service-connected condition 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, operating under a different set of laws.

Status Post Left Ankle Bimalleolar Fracture Condition.  There were three goniometric range-of-motion (ROM) evaluations in evidence (with documentation of additional ratable criteria) which the Board weighed in arriving at its rating recommendation as summarized in the chart below.

Left Ankle ROM
(Degrees)

PT ~4.27 Mo. Pre-Sep

PT ~1.67 Mo. 
Pre-Sep

VA C&P ~ 1.23 Mo. Post-Sep

Dorsiflexion (20 Normal) | 8 (lacks 12 degrees) | 10 | 5
Plantar Flexion (45) | 35 | 40 | 20
Comment | 2 weeks post-op; Swelling;  tenderness to palpation (TTP) dorsum of foot around portals; slow, antalgic gait; mild pain; increased pain with eversion; pain with weight-bear, pain 0/10 in non-weight bear | Pain around back of calcaneus with standing; ankle brace ordered | Crepitus; scars 9cm long x 2cm wide- TTP; painful motion with ROM; additionally limited by pain, fatigue, weakness, lack of endurance with repetitive use; 2 cm soft tissue edema; moderate TTP on scar areas of medial/lateral malleolus; slow guarded gait; limited motion ankle joint stable
§4.71a Rating | 20% (5271) | 20% (5271) | 20%

The CI sustained a left ankle bimalleolar fracture in June 2000 and underwent a left ankle ORIF of the distal fibular and medial malleolus 2 days later.  The cast was removed and orthopedics noted edema and ordered a CAM walker.  The CI was placed on LIMDU by orthopedics for the left ankle with specific restrictions.  The CI was seen by orthopedics and noted to have pain, edema, limited ROM with 5 degrees of dorsiflexion and 35 degrees of plantar flexion, along with tenderness to palpation (TTP).  The orthopedist recommended continuing LIMDU with restrictions of no running, no crawling, no jumping, no aerobics and no prolonged standing, walking or marching.  The CI continued with complaints of some left ankle swelling and discomfort and had physical findings of moderate edema and limited ankle ROM in January 2001.  The CI had hardware removed from the left ankle in early 2001 and her LIMDU was extended for another 8 months.  At the end of the LIMDU the CI was returned to full duty, though she still had difficulty with left ankle pain and motion as she was barely able to run or stand for prolonged times without increase in pain to her ankle.  Throughout 2002, the CI continued follow up with orthopedics and PT.  The CI underwent a left ankle arthroscopy in February 2003 with debridement of osteophytes and intra-articular scar tissue.  The MEB narrative summary (NARSUM) (4 months prior to separation) indicated that the CI complained of pain and swelling in the left ankle.  There was no physical examination of the left ankle performed at this time.  The CI was evaluated by PT 4 months prior to separation with complaints of left ankle pain with weight bearing; she was noted to be sitting more on her job and had light duty restrictions.  The physical exam findings are summarized in the chart above.  The CI was again seen by PT for left ankle pain following 1 to 1.5 months prior to separation.  These physical exam findings are also summarized in the chart above.  The VA Compensation and Pension (C&P) exam (a month after separation) documented that the CI still had symptoms of constant, moderate left ankle pain around the joint associated with swelling, crepitus on motion, eight acute flare ups during the previous year, she required an ankle brace most of the time, and sometimes needed a cane.  The CI could not wear a high heel shoe, run, and walk for long periods; additionally she required NSAIDS, sitting, elevation of the left leg, and ice application to alleviate the pain.  A left ankle X-ray performed at this exam revealed a mild boney deformity of the medial malleolus.  These physical examination findings are also noted in the chart above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the s/p left ankle bimalleolar fracture condition analogous to 5003 arthritis, degenerative (hypertrophic or osteoarthritis) and rated at 10%.  The VA coded the bimalleolar fracture with ORIF of distal fibula and mild malleolus deformity, left ankle condition as 5271 ankle, limited motion of and rated at 20% for marked limitation of motion.  The MEB NARSUM provided no additional information relevant to rating.  Both PT evaluations, which were in March and May 2003, documented limited left ankle ROM measurements along with documentation of pain.  There was a minimal improvement in ROM measurements at the time of the second PT evaluation.  The C&P examination failed to show any ROM improvement and demonstrated a worsening in the ankle ROM along with TTP; painful motion with ROM; ROM additionally limited by pain, fatigue, weakness, lack of endurance with repetitive use and crepitus.  The Board adjudged that the C&P examination was closer to separation and therefore had higher probative value.  However, all exams support a finding of marked limitation of motion.  The Board reviewed the criteria for 5271 rating of 10% for moderate and 20% for marked limitation of motion.  The Board agreed regarding the following findings: ankle ROM worsened over time along with TTP, there was painful motion with ROM, ROM was limited by pain, fatigue, weakness, and lack of endurance with repetitive use.  Additionally, crepitus exceeded the moderate 10% rating and was closer to the marked 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the s/p left ankle bimalleolar fracture condition coded 5271.

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 s/p left ankle bimalleolar fracture condition, the Board unanimously recommends a disability rating of 20%, coded 5271 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Status Post Left Ankle Bimalleolar Fracture | 5271 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120628, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

xx
President
Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	 COMMANDER, NAVY PERSONNEL COMMAND
	     	          		           	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 10 Sep 13 ICO  
          (c) PDBR ltr dtd 9 Oct 13 ICO  
          (d) PDBR ltr dtd 22 Oct 13 ICO  
                                               
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

	a.  former USMC:  Disability retirement with assignment to the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective 1 September 2002.

	b.  former USN:  Disability separation with a final disability rating of 20 percent (increased from 10 percent) effective 15 July 2003.

c.  former USMC:  Disability retirement with assignment to the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective 30 June 2006.
	
3.  Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.

	xx
	Assistant General Counsel
	  (Manpower & Reserve Affairs)