RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01873
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150106
SEPARATION DATE:  20080430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCpl/E-3 (6300/Avionics Technician) medically separated for chronic pain left foot, possibly secondary to sural neuralgia.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The bilateral ankle conditions, characterized as “chronic bilat ankle instability” and “chronic ankle tenosynovitis, bilat,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic bilateral ankle instability” as unfitting, rated 10% each foot, with likely application of the VA Schedule for Rating Disabilities (VASRD) and “chronic ankle tenosynovitis bilateral” as Category II (contributing to unfit condition).  The CI appealed to the Formal PEB (FPEB) but a subsequent Reconsideration PEB affirmed the IPEB’s findings and ratings.  The CI appealed and was granted a FPEB which determined the “chronic pain left foot possibly secondary to sural neuralgia” as unfitting, rated 10% with likely application of the VASRD.  The remaining conditions (chronic bilateral ankle instability, resolved status post [s/p] modified Brostrom; history of chronic bilateral ankle tenosynovitis; right ankle pain s/p modified Brostrom; and accessory ossicle [partially unfused apophysis fifth metatarsal, congenital variant] right foot) were determined to be Category III (not separately unfitting).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have stomach ulcers [sic], a heart condition which needs a procedure, and hearing loss and a surgical repair on my left foot.  All are service-connected.”

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 foot condition is addressed below.  The Category III right ankle condition was not contended and therefore not within the DoDI 6040.44 defined purview of the Board.  This and any condition 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 FPEB – Dated 20071127	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Left Foot, Possibly Secondary to Sural Neuralgia	8799-8725	10%	Left Ankle Condition, Status Post Brostrom Surgery	5271 	0%	STR	
			Sural Nerve Pain/Neuroma	8799-8721 	0%	STR	
Other x 0 (Not In Scope)	Other x 2	
Combined:  10%	Combined:  0%	
*Derived from VA Rating Decision (VARD) dated 20103009 (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 conditions continue to burden him.  The Board also acknowledges the CI’s contention that suggests a higher rating should have been granted on the unfitting medical condition documented at the time of separation.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

The Board further acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation.  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.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Left Foot Condition.  The service treatment record (STR) indicated that the CI had multiple inversion (twisted inward) injuries of the left ankle in early 2006; and, all X-rays were absent boney abnormalities or acute changes.  He suffered persistent ankle inversions associated with pain which was treated with LIMDU and conservative measures.  After symptoms failed to improve, a surgical Broström repair (ligament stabilization surgery) was performed in October 2006.  Post-operative X-rays revealed intact implanted hardware with expected post-surgical findings.  The surgery improved his overall stability, but the pain worsened about the surgical site as well as the outside aspect of his left foot.  The CI subsequently underwent sural and peroneal nerve blocks which provided temporary relief.  Persistent pain with episodic numbness and tingling continued and he was referred to an MEB.  At the narrative summary examination performed 11 months prior to separation, the CI reported limited range-of-motion (ROM) of both ankles, left greater than right.  He endorsed the inability to engage in any high impact activity or prolonged standing without experiencing moderate to severe discomfort along the side of the left ankle.  The physical examination noted an antalgic gait and ROM described as “limited” in both dorsiflexion and plantar flexion of the left ankle.  Tenderness, edema, weakness, and discoloration were present about the left ankle.  His strength parameters were described as 2-3 out of a 5 point scale.  Crepitus was not present.  Repeat X-rays were consistent with a stable ankle joint.  The diagnosis was chronic, bilateral ankle instability and tenosynovitis. The commander’s statement implicated the CI’s inability to maintain fitness standards given his present physical condition.

There was no C&P examination in the file due to a “no show,” but pertinent historical medical information was obtained from a remote VARD summary dated 30 September 2010 which revealed a 0% rating.  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)	Pain Mgmt ~ 9 Mo. Pre-Sep
(20070810)	Ortho ~ 5 Mo. Pre-Sep
(20071118)	
Dorsiflexion (20 Normal)	10	15	
Plantar Flexion (45)	--	45	
Comment	Guarding; 
(+) nerve irritation	Tenderness; weakness	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  Board members first reviewed the PEB’s coding/rating determination in this case.  While the diagnosis of persistent left foot pain is clear, the PEB’s ultimate determination of a nerve etiology in the presence of objective weakness left room for clarification of that specific diagnosis.    It appeared that pain and paresthesia were the principle components to the CI’s condition, which would appropriately correspond to ‘total sensory’ nerve fibers such as the identified sural nerve.  However, the objective weakness of associated foot muscles would indicate the pathology lies in a nerve that carries both ‘sensory’ and ‘motor’ fibers; therefore, Board members considered ratings under VASRD §4.124 (peripheral nerve) or §4.73 (muscle injuries) for a permanent rating.  Anatomically, the most appropriate ‘combined fiber’ nerve in the lower leg is the superficial peroneal which would provide the combined findings of abnormal sensation and abnormal (weakened) motion/strength.  The VASRD criterion for neuralgia in this case is 0% (mild), 10% (moderate) and 20% severe.  Members agreed that the evidence of pain and weakness was not present above the moderate (10%) level.

Another VASRD compliant rating approach was directed at the corresponding muscle component linked to the observed weakness, which were the peroneal muscles depicted in Group XI (propulsion, plantar flexion of foot) VASRD muscle group IAW VASRD §4.73.  The impairment criterion for this muscle group is 0% (slight), 10% (moderate), 20% (moderately severe), and 30% (severe).  In this case, members agreed that the presenting muscle impairment was not present above the moderate (10%) level.  Additionally, members considered 5271 (ankle; limited motion) and agreed that the minimal ROM decrement supported the greatest level of impairment as “moderate” at 10%.  Lastly, the Board considered alternative VASRD foot and analogous codes, but all were equal or less applicable and not advantageous to the current PEB rating of 10%.  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 foot 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 foot 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140515, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 18 May 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 USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC

			  XXXXXXXXXXXXXXX
	     		  Assistant General Counsel
			  (Manpower & Reserve Affairs)