RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XX	CASE:  PD1201148
BRANCH OF SERVICE: marine corps	BOARD DATE:  20130312
SEPARATION DATE:  20030930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (0621/Radio Operator), medically separated for a bilateral ankle condition.  With recurrent ankle sprains bilaterally, each ankle required repeated surgical repair.  However, despite surgery, neither ankle could be adequately rehabilitated to meet the physical demands of his rating, and he was referred for a Medical Evaluation Board (MEB).  The MEB forwarded “bilateral ankle instability” to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E; and no other conditions were submitted.  The PEB adjudicated the bilateral ankle condition as unfitting with separate ratings of 10% for each the right and left ankle (applying bilateral factor), in accordance with the  Veterans' Administration Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated with a 20% combined disability rating.

CI CONTENTION: “Multiple surgeries to left + right lower extremities.”

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.  Ratings for unfitting conditions will be reviewed in all cases.  The ratings for the unfitting ankle conditions are addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention 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.

RATING COMPARISON:  

Service PEB – Dated 20030729	VA -  (4 Mos. Post-Separation)     All Effective 20031001*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left  Ankle Instability	5299-5003	10%	Left  Ankle Instability	5271	10%	20040122	
Right  Ankle Instability	5299-5003	10%	Right  Ankle Instability	5271	10%	20040122	
No Additional MEB/PEB Entries	NSC X 7	20040122	
Combined:  20%	Combined:  20%	
*VARD 20040506 and 20040921.

ANALYSIS SUMMARY: 

Left Ankle Instability Condition:  Noting a history of multiple ankle sprains in the past, the CI first presented for care during basic training, on 5 December 1997, for a left ankle inversion injury.  The CI re-injured the left ankle on 5 June 1999, and again on 15 January 2000, after which time he was unable to bear weight.  Orthopedic evaluation noted presence of instability (a positive anterior drawer sign).  On 16 March 2000, the CI underwent surgery on the left ankle in order to shorten the calcaneofibular ligament (CFL), hoping to resolve this instability by surgically limiting the range-of-motion (ROM).  Orthopedic follow-up in May 2000 notes that the anterior drawer sign was absent, but noted decreased dorsiflexion from 25 degrees to zero degrees.  In November 2001, the CI was released from active duty, having completed his enlistment.  Re-enlisting within several months, he was returned to full duty without restriction.  Several months later, in April 2002, due to recurrent symptoms in his left ankle, he underwent another surgery to strengthen the anterior talofibular ligament.  The orthopedic evaluations on 18 November 2002 and 12 December 2002 recommended MEB, stating the ankle instability had persisted despite repeated surgery, and that he had “worsening ankle pain due to physical activity,” and was unable to run, hike, march, or to perform his required duties.  The MEB narrative summary (NARSUM) examination dated 21 March 2003 recorded “bilateral ankle with tenderness to palpation along lateral and medial malleolus.”  There was “full active range of motion, but decreased strength bilaterally due to pain.”  At the VA Compensation and Pension (C&P) examination on 22 January 2004, 4 months after separation, the CI reported “constant pain in the left “ankle and foot,” “worse with any type of exercise,” limiting standing to 20 minutes, and limiting his walking distance to three blocks “before having to stop.”  The CI noted swelling in the ankle and foot after exercise or prolonged standing.  Upon examination, the VA examiner noted healed scars, no swelling, with full ROM and “with some instability in the ankle.”  X-rays noted retained hardware in the calcaneus, but no evidence of degenerative joint disease (DJD).  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA had rated the left ankle condition at 10%, but using different codes.  The PEB under code 5299-5003 cited instability and pain, whereas the VA under 5271 cited “slight instability of the ankle” with functional impairment due to pain and weakness.  The Board noted that the ROM at the time of the MEB and C&P examinations was normal and therefore did not attain a minimum rating under VASRD diagnostic code 5271, ankle limitation of motion, which assigns 10% for moderate limitation of motion.  No other ankle VASRD diagnostic codes were applicable.  The Board concurred that a 10% rating for functional loss due to instability and pain was appropriate as adjudicated by both the PEB and VA.  After due deliberation, 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 instability condition.

Right Ankle Instability Condition:  The CI first presented for care for a right ankle inversion injury on 16 July 2001.  Examination revealed laxity with inversion.  On 1 August 2001, he underwent a right ankle surgery for right ankle instability.  After resolution of a post-operative wound infection, he was released from active duty on 1 November 2001, having reached his completion of required service.  Soon after, in February 2002, he re-enlisted and returned to full duty without restriction.  In July 2002, he required a second surgery on his right ankle for instability.  On 18 November 2002, orthopedic evaluation noted persistent pain and instability in the right ankle with activity or prolonged standing, without relief from either surgery or conservative measures.  On this occasion, the orthopedist recorded the diagnosis of chronic bilateral ankle instability and recommended MEB.  The MEB narrative summary (NARSUM) examination dated 21 March 2003 recorded “bilateral ankle with tenderness to palpation along lateral and medial malleolus.”  There was “full active range of motion, but decreased strength bilaterally due to pain.”  At the C&P examination on 22 January 2004, 4 months after separation, the CI reported the right ankle symptoms as “constant aching and swelling off and on,” worse when performing exercises.  Symptoms and restrictions were noted to be the “same as in the left ankle.”  Upon examination, the VA examiner noted healed scars, no swelling, with full ROM and “with some instability in the ankle.”  The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA rated the right ankle condition at 10%, but using different codes.  The PEB under 5299-5003 had cited instability and pain, and the VA under 5271 had cited “slight instability of the ankle” with functional impairment due to pain and weakness.  The Board noted that the range of motion at the time of the MEB and VA C&P examinations was normal and therefore did not attain a minimum rating under VASRD diagnostic code 5271, ankle limitation of motion, which assigns 10% for moderate limitation of motion.  No other ankle VASRD diagnostic codes were applicable.  The Board concurred that a 10% rating for functional loss due to instability and pain was appropriate as adjudicated by both the PEB and VA.  After due deliberation, 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 right ankle instability 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.  In the matter of the right and left ankle instability conditions 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, as follows:  

UNFITTING CONDITION	VASRD CODE	RATING	
Left Ankle Instability	5299-5003	10%	
Right Ankle Instability	5299-5003	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120612, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XX
Director of Operations
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 19 Jun 13

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective 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:

- XX former USMC
- XX former USMC
- XX former USMC
- XX former USN
- XX former USMC
- XX former USMC
- XX former USNC
- XX former USMC

						  XX
	     					  Assistant General Counsel
						     (Manpower & Reserve Affairs)