RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXx BRANCH OF SERVICE: MARINE CORPS
CASE NUMBER: PD0900517 BOARD DATE: 20100811
SEPARATION DATE: 20080929
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SUMMARY OF CASE: This covered individual (CI) was a LCpl, Engineer Equipment Mechanic medically separated from the Marine Corps in 2008 after two years and nine months of service. The medical basis for the separation was Recalcitrant Ankle Pain Left. The CI was referred to the Physical Evaluation Board (PEB), found unfit for the condition determined unfit for continued military service and separated at 10% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Naval and Department of Defense regulations.
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CI CONTENTION: CI makes no contentions.
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RATING COMPARISON:
| Service PEB | VA (4 Months after Separation) | |||||||
|---|---|---|---|---|---|---|---|---|
| Unfitting Conditions | Code | Rating | Date | Condition | Code | Rating | Exam | Effective |
| Recalcitrant Ankle Pain Left | 5299-5003 | 10% | 20080710 | Left Ankle Injury, S/P Modified Brostrom’s Repair | 5299-5273 | 10% | 20090121 | 20080930 |
| Not in DES | Tinnitus | 6260 | 10% | 20090121 | 20080930 | |||
| Not in DES | Gastroesophageal Reflux Disease | 7399-7346 | 0% | 20090121 | 20080930 | |||
| Not in DES | Bilateral Hearing Loss | NSC | ||||||
| TOTAL Combined: 10% | TOTAL Combined (Includes Non-PEB Conditions): 20% from 20080930 |
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ANALYSIS SUMMARY:
Ankle Pain
The CI had multiple left ankle injuries during boot camp and training and had continued left ankle pain despite conservative treatment and light duty. After a course of physical therapy failed to alleviate his symptoms he was referred for surgery. On 20080208 he had a left ankle stabilization procedure with peroneal subluxing repair. He did have some decrease in his pain after the surgery but was not able to return to full duty. He continued to have pain and was not able to run or stand for prolonged periods of time. On examination he had a normal gait and there was no evidence of joint instability. There was no motor or sensory abnormality. However, he did have slightly decreased range of motion (ROM) and an X-ray done in January 2009 showed continued swelling. ROM exams are noted in the chart below. He also had lack of endurance and did sometimes have to sit down to rest his ankle while at work and he did not participate in any sports. At the time of the VA Compensation and Pension (C&P) exam in January 2009 he was not having any difficulties with activities of daily living.
(Separation Date 20080929, Surgery 20080208)
| Movement |
|---|
| Left Ankle |
| Dorsiflexion |
| Plantar flexion |
| Eversion |
| Inversion |
| Notes: |
| Right Ankle |
| Dorsiflexion |
| Plantar flexion |
| Eversion |
| Inversion |
Other Conditions Not in the Disability Evaluatin System (DES)
Tinnitus, Gastroesophageal Reflux Disease, and Bilateral Hearing Loss
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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. After careful consideration of all available information the Board unanimously determined that the CI’s condition is most appropriately rated as Recalcitrant Ankle Pain Left with a 10% disability rating. The Navy PEB rated 10% under VASRD code 5299-5003 and the VA rated 10% under 5299-5273. There is no specific code for this condition in the VASRD and either 5299-5273 or 5299-5271 could also be used to rate this condition. However, the rating would be 10% with any of the codes and there is no advantage to the CI in choosing one code above the others. Therefore no recharacterization is recommended.
The CI had multiple left ankle injuries which required surgical repair. He did show improvement after surgery but continued to have pain and lack of endurance after surgery and was not able to return to full duty. He had slightly decreased ROM of his left ankle but this was below the minimum compensable level. VASRD §4.59 Painful motion states the intent of the schedule is to recognize actually painful, unstable, or malaligned joints due to healed injury, as entitled to at least the minimum compensable rating for that joint. For the ankle the minimum compensable rating is 10%.
The other diagnoses rated by the VA (Tinnitus, Gastroesophageal Reflux Disease, and Bilateral Hearing Loss) were not mentioned in the Disability Evaluation System package and are therefore outside the scope of the Board. The CI retains the right to request his service Board of Correction for Naval Records (BCNR) to consider adding these conditions as unfitting.
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RECOMMENDATION: The Board therefore recommends that there be no recharacterization of the CI’s disability and separation determination.
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The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20090826, w/atchs.
Exhibit B. Service Treatment Record.
Exhibit C. Department of Veterans' Affairs Treatment Record.
Deputy Director
Physical Disability Board of Review
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL
OF REVIEW BOARDS
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
ICO XXXXX
Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 19 Aug 10
I have reviewed the subject case pursuant to reference (a) and approve the recommendation of the Physical Disability Board of Review (reference (b)) that Mr. XXXX’s records not be corrected to reflect a change in either his characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board.
Principal Deputy
Assistant Secretary of the Navy
(Manpower & Reserve Affairs)
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