RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Marine corps

CASE NUMBER: PD0900621 SEPARATION DATE: 20081030

BOARD DATE: 20110715

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-6 (2862, Electronic Maintenance) medically separated for chronic right ankle pain. The CI injured his right ankle in November 2005. He was treated (including surgery), but did not respond adequately to perform his required military duties or meet physical fitness standards. He underwent a Medical Evaluation Board (MEB). Chronic right ankle pain was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. The PEB found the right ankle pain unfitting, and assigned a disability rating of 10%. One other condition (peroneal tendon sheath repair) was adjudicated as category II (related to the unfitting condition). The CI accepted the PEB findings and was medically separated with 10% disability IAW applicable Navy and DoD regulations.

CI’s CONTENTION: “It took almost a year for my Doctor to submit me for an MRI to diagnose the injury to my right ankle, after sending me through over six months of physical therapy that may or may not have aggravated the injury before he knew what it was. One month before my end of contract date I am told that I am going to have to have surgery (February 2007). After the surgery as I am going through rehabilitation I inform my doctor of the numbness and pain in my thigh as well as the inability to bend my ankle inward. In October 2007 six months after the first surgery the Doctor tested my ankle and told me I needed a second surgery. I went through a year of physical therapy which ended with me still having limited flexibility, and constant pain in my right ankle. I was told by my Doctor that I would be walking with a cane for the rest of my life. As I had told my Doctor then I still cannot walk for anymore than 15 minutes without a cane before having to stop due to the pain. Also not present in my original findings was the nerve damage I received in my right thigh due to the tourniquet that was used during the February 2008 surgery to my right ankle. I feel that with the severity of these issues, I should have been qualified for Medical Retirement.”

RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the significant impact that his service-incurred condition has had on his quality of life. However, the DoD has neither the role nor the authority to compensate veterans for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Veterans’ Administration. Furthermore, the Board has neither the jurisdiction nor authority to render opinions regarding suspected Disability Evaluation System (DES) improprieties in the processing of his case. The Board’s role is confined to the review of all evidence at hand to assess the fairness of PEB rating determinations, compared to the VA Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation. It must also judge the fairness of PEB fitness adjudications based on the fitness consequences of conditions as they existed at the time of separation.

Chronic Right Ankle Pain. In November 2005, this Marine suffered a right ankle inversion injury. The injury was initially diagnosed as ankle sprain. He was treated with physical therapy (PT) and nonsteroidal anti-inflammatory drugs (NSAIDs). However, his right ankle pain persisted. Plain x-rays were normal, and bone scan showed increased uptake in the region of the lateral malleolus. Magnetic resonance imaging (MRI) revealed injury to the peroneus brevis tendon. He was treated with bracing and light duty. By January 2007, his strength and motion had improved, but he had pain with activity, especially running. He underwent surgical repair of his right peroneus brevis tendon on 2 February 2007. Post-operatively, the CI resumed PT but did not improve, as expected. He underwent a second surgery in October 2007, this time to repair the tendon sheath. After that, the CI was still unable to perform the duties of a Marine and an MEB was initiated.

In his MEB ankle evaluation on 9 May 2008, the CI reported right ankle pain, worse with activities, and improved with rest. On examination he had tenderness at the incision site on the lateral right ankle, and pain with right ankle motion. Muscle strength was full. Range of motion (ROM) of the ankle and subtalar joints was within normal limits. Neurologic examination of the foot and ankle was normal. Gait was normal. The MEB forwarded two conditions (chronic right ankle pain, and status post peroneal tendon sheath repair) to the PEB. As mentioned above, the PEB found the chronic right ankle pain unfitting (coded 5299-5003), and adjudicated the peroneal tendon sheath repair as category II.

In August 2008 (two months prior to separation) the CI had a VA compensation and pension (C&P) evaluation. At that time, he was using a cane and an ankle brace. He was able to walk 45 minutes on a treadmill, but was not able to run. On exam, he had normal right ankle ROM, with no spasm, tenderness or weakness. X-rays were normal. In the treatment record, two goniometric ROM evaluations were in evidence, which the Board weighed in arriving at its rating recommendation. These two ROM exams are summarized below.

The Board carefully reviewed all evidentiary information available. It noted that the chronic right ankle condition was essentially non-compensable, based on VASRD §4.71a ankle criteria (codes 5270-5274). However, IAW VASRD §4.40 and §4.59, a 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint. After considerable discussion and due deliberation, the Board unanimously recommends a disability separation rating of 10% for the chronic right ankle condition. The Board also determined that the peroneal tendon sheath repair was indeed related to the unfitting right ankle condition. It was not separately unfitting and therefore does not warrant a separate disability rating.

Other Contended Conditions. The CI contends that a compensable rating should be considered for nerve damage to the right thigh. The Board found evidence of a damaged sensory branch of the right femoral nerve, following the February 2007 ankle surgery. Neurology evaluation in October 2007 documented a small area of numbness on the anterior right thigh and suggested that the numbness would most likely not go away. At the VA C&P examination, the examiner opined, “It does not affect the patient’s daily activity, occupational activities or recreational activity.” The thigh numbness did not result in limited duty and was not mentioned in the commander’s non-medical assessment. The Board determined that a small area of thigh numbness would not preclude the CI from fulfilling the duties expected of a Marine. Thus there was no evidence for concluding that the right thigh numbness interfered with duty performance to a degree that could be argued as unfitting. Right thigh numbness is therefore not subject to service disability rating.

Remaining Conditions. Shoulder pain, back pain, blood in stool, kidney stones, hematuria, and several other conditions were documented in the DES file. None of these conditions were clinically significant during the MEB/PEB period, none were the basis for limited duty, and none were implicated in the commander’s assessment. These conditions were all reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. Additionally, right knee pain, seborrheic dermatitis, and several other conditions were noted in the VA rating decision proximal to separation, but were not documented in the DES file. The Board does not have the authority to render fitness or rating recommendations for any conditions not considered by the DES. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation 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 chronic right ankle pain (IAW VASRD §4.71a) the Board unanimously recommends no change in the PEB adjudication. In the matter of the nerve damage to right thigh, shoulder pain, back pain, blood in stool, kidney stones, hematuria, or any other conditions eligible for consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

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 20091012, 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

Ref: (a) DoDI 6040.44

(b) PDBR ltr dtd 1 Aug 11

I have reviewed the subject case pursuant to reference (a) and, for the reasons set forth in reference (b), approve the recommendation of the Physical Disability Board of Review xxxxxxx 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.

Assistant General Counsel

(Manpower & Reserve Affairs)