RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xx	CASE:  PD1201302
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20130613
SEPARATION DATE:  20020215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, LCPL/E-3, (6541/Aviation Ordinance) medically separated for a left ankle condition.  She was injured in 2001 and a review of health records revealed a history of left ankle fibular stress fracture.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The left ankle condition was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated “recurrent stress fracture lateral malleolus,” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated.

CI CONTENTION:  “I was initially injured during my basic training.  My injury has been described by an MD as chronic, meaning lifelong.  I did my best to continue with my training and serve as a Aviation Ordinance Systems Technician despite being recommended by professionals in the medical Field ??? two(2) PEB boards.  The impact of my initial injury has cost me the ability to due many weight bearing activities, including even standing or walking at times.  This is also affected by a secondary injury in my hip flexor I received as a result of my chronic fibular stress fracture.”

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; 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 IPEB – Dated 20120626	VA - (15 days Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Recurrent Stress Fracture Lateral Malleolus	5262	10%	Status Post Left Malleolus and Fibular Fractures	5299-5262	10%	20020130	
No Additional MEB/PEB Entries	Other x 3	20020130	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20020416 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which her service-incurred condition continues to burden her.  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES 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 (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 further acknowledges the CI’s contention for ratings for other conditions documented at the time of separation, and notes that its recommendations in that regard must comply with the same governance.

Left Ankle Condition.  The narrative summary (NARSUM) notes the CI had a history of left ankle fibular stress fracture while in boot camp.  The symptoms improved gradually with treatment and the CI was able to increase her activity, but the pain recurred with running and progressively worsened.  X-ray of the left ankle showed a healed stress fracture of the lower fibula.  At the last treatment visit noted in the record on 30 June 2001, approximately 8 months prior to separation, the CI reported a dull achy pain in the left ankle increased by prolonged standing or activity with occasional swelling.  The exam showed ankle ROM that was decreased, but equal bilaterally, of dorsiflexion (DF) 10 degrees and plantar flexion (PF) 30 degrees.  There was no tenderness to palpation (TTP), crepitus, effusion, or instability.  Strength, sensation, and reflexes were normal.  A repeat bone scan was noted as “increased uptake medial and lateral malleolus.”  The assessment was medial and lateral malleolus stress fractures.  The CI was to be non-weight bearing on the left ankle for a month.

At the MEB examination 2 August 2001, approximately 6 months prior to separation, the CI reported recurrent pain with weight bearing and was noted to be on crutches.  The MEB physical examination noted no swelling or TTP of the left ankle.  There was no instability and strength was normal.  Range-of-motion (ROM) was DF of 15 degrees (normal 20°) and PF of 45 degrees (normal 45 degrees).

At the VA Compensation and Pension examination 30 January 2002, approximately 2 weeks prior to separation, the CI reported pain, swelling, stiffness and instability of the left ankle.  The symptoms occurred intermittently and could last 1 or 2 days brought on by overuse, causing difficulty standing or walking for prolonged periods.  She was not taking any medication for her ankle symptoms.  The VA examination showed a normal gait.  There was no swelling, effusion, instability, abnormal movement or weakness of the left ankle.  ROM was DF of 15 degrees with pain; PF of 40 degrees with pain.  Strength, sensation and reflexes were normal bilaterally.  The examiner noted the major functional impact for the veteran was painful limited left ankle ROM.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the left ankle condition as 5262 (tibia and fibula impairment) at 10%.  The VA also rated the left ankle condition at 10%, coded as 5299-5262 (analogous to tibia and fibular impairment).  The Board deliberated the rating of the left ankle condition.  The Board noted that despite appropriate medical treatment the CI had persistent slightly decreased, painful ROM of the left ankle.  The Board agreed that this met the 10% disability rating IAW VASRD §4.59 (Painful motion) coded as 5262.  The Board reviewed to see if there was a path to a higher evaluation than the 10% disability rating adjudicated by the PEB and concluded that there was not.  Therefore, 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 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, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Recurrent Stress Fracture Left Lateral Malleolus Condition	5262	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120626, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

xx
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 19 Aug 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:

- former USMC    
- former USN
- former USMC
- former USN 
- former USMC
- former USN 
- former USN
- former USMC
- former USN

						xx
	     					  Assistant General Counsel
						     (Manpower & Reserve Affairs)