RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02659
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141007
SEPARATION DATE:  20051001

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-4 (SK3/Storekeeper Third Class) medically separated for a left ankle condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Rating or satisfy physical fitness standards.  She was placed on limited duty twice 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 Informal PEB adjudicated “left subtalar joint posttraumatic arthritis, status post left subtalar joint arthrodesis” as unfitting, rated 20%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am currently still having issues w/my L ankle and will continue to do so for the rest of my life.  When my left ovary wasn’t properly removed it was due to an ovarian cyst.  Cyst was too big and my ovary was accidently cut into and then had to be removed.  I now have fibroid tumors on my uterus and more cysts on my right ovary.  I also have had an ectopic pregnancy, but my tubes were tied on active duty.  I deserve a rating!  The VA is currently treating me for PTSD.  And I am on medication for this and have not received a rating for my condition.  I was diagnosed while on active duty and have not received a rating for my condition.  I was diagnosed while on active duty and was prescribed – Elavil for sleep.  Currently I take Prozac, Buspar, & Trazodone.” 

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 ankle condition is addressed below; 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 20050711 | VA - (5 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam

Left Subtalar Joint Posttraumatic Arthritis, Status Post Left Subtalar Joint Arthrodesis

5720*
(5270)

20%

Post-Operative L/ Ankle Fracture

5271

20%

20060327

| | | Scar, Post-Operative L/Ankle Fracture Associated with Post-Operative L/Ankle Fracture | 7804 | 10% | 20060327
Other x 0 (not in Scope) | Other x 2
Combined:  20% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20061208 (most proximate to date of separation [DOS]).
(* is inconsistent with VASRD schedule Part 4 – Schedule for Rating Disabilities)

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; 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.

Left Ankle Condition.  Service treatment records show the CI injured her left ankle in a motor vehicle accident on 26 February 2004.  Orthopedic surgery documented a malunion of a fracture of her talus (also called the astragalus, which is the ankle bone that forms the ankle joint with the lower leg bones).  A computed tomography scan confirmed the malunion of a talus lateral process fracture with associated post-traumatic degenerative joint changes in the subtalar (between talus and the calcaneus) joint.  Failing conservative therapy, on 2 November 2004 the CI underwent left ankle surgery.  The CI had essentially no relief of pain from this procedure and on 8 March 2005 underwent a fusion of one of the ankle joints (subtalar arthrodesis).  The MEB narrative summary (NARSUM) was dictated by an orthopedist on 23 May 2005 (2 months after surgery and 5 months prior to separation).  The CI complained of left ankle pain and sensory changes of the left sole.  She reported that her post-operative pain was only mildly improved and that her activity was not increased over preoperative levels.  The CI was able to walk for only approximately 5 minutes and was unable to run.  Physical examination showed a well-healed and tender incision (not unusual this close to surgery).  There was no motion in her left subtalar joint which is expected after the fusion.  Measured range-of-motion (ROM) of the entire left ankle is listed in the table below.  Radiographs showed a good surgical result.

At the 27 March 2006 (6 months after separation) VA Compensation and Pension (C&P) examination, the CI complained of intermittent left ankle pain, weakness and stiffness.  The CI denied joint swelling, effusion (fluid collection), erythema (redness) or warmth.  She reported using her left ankle brace at least once a week, but did not require a cane or assistive device.  Physical examination of the left ankle showed well healed surgical incisions which were slightly tender.  There was no joint swelling, erythema or effusion.  Measured left ankle active ROM is listed in the table.  The CI did not exhibit left ankle weakness, fatigability, incoordination or instability.  The CI demonstrated evidence of pain (by facial grimacing) with left ankle palpation and ROM.  However, she was able to walk on her tiptoes and heels; this was difficult wearing heels, though.  With repetition, she had increased pain and a further decrease in motion (this is not specified, but it was apparently a decrease in the passive ROM).  She was limited in wearing heels greater than one inch in height or “wedges,” no other foot wear restrictions were noted.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Ankle ROM
(Degrees)

MEB ~ 5 Mo. Pre-Sep

VA C&P ~ 5 Mo. Post-Sep

Dorsiflexion (20 Normal) | 20 | 10
Plantar Flexion (45) | 35 | 15
Comment | 5271/5272 | DeLuca: Dorsi flexion 6 degree decrease and plantar flexion 8 degree decrease (apparently passive)
§4.71a Rating | 10% | 20%

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the unfitting left ankle condition 20%, coded 5270 (ankle, ankylosis of: in plantar flexion, less than 30 degrees).  The VA granted the service-connected left ankle condition an evaluation of 20%, coded 5271 (ankle, limited motion of, moderate).  The Board considered the coding options for the partially fused ankle with reduced ROM without malunion or excision.  There also was limited motion of the ankle for consideration under 5271.  The MEB ROM supported a 10% rating for moderate limitation of motion under 5271.  The MEB NARSUM examination and radiographs documented surgical fusion of the subtarsal joint supporting a 10% rating for ankylosis of the subtarsal joint in good weight-bearing position under 5272.  A de novo rating considering the findings documented in the MEB NARSUM would support no more than a 10% rating.  The VA C&P documented loss of dorsiflexion and plantar flexion also supporting a 20% rating for marked limitation of motion under either 5270 or 5271.  The documented passive ROM did not demonstrate ankle ankylosis supporting a higher evaluation of 30% under 5272.  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.

The Board also considered if the post-operative scar was an additional unfitting condition.  The CI was allowed to wear a shoe of comfort, but this is typical in the post-operative period in which she remained during the Disability Evaluation System process.  The VA noted that the CI could not wear some shoes, but this was related to the angle of the shoe to the ground; specifically, she could not wear heels greater than one inch or a wedge shoe.  No other restrictions were noted.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend that the scar condition be added as an unfitting condition at separation.  The Board concluded therefore that this condition could not be recommended for additional disability 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.  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.  In the matter of the scar condition, the Board unanimously agrees that it was not unfitting and no additional disability rating can be recommended.  There were no other conditions within the Board’s scope of review for consideration.

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131213, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXX
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 26 Mar 15

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

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC

						  XXXXXXXXXXXXXXX
	     				  Assistant General Counsel
		  (Manpower & Reserve Affairs)

PD-2013-02659