RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: marine corps

CASE NUMBER: PD1000041 SEPARATION DATE: 20090330

BOARD DATE: 20120106

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty member, LCpl/E-3 (3500, Student), medically separated for reflex sympathetic dystrophy (RSD). In September 2007, the CI sustained an inversion injury to his right ankle while engaged in a training exercise. He did not respond adequately to treatment and was unable to perform fully within his Military Occupational Specialty (MOS) or meet physical fitness standards. He was placed on limited duty and underwent a Medical Evaluation Board (MEB). RSD was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. No other conditions appeared on the MEB’s submission. Other conditions included in the Disability Evaluation System (DES) packet will be discussed below. The Informal PEB (IPEB) adjudicated the RSD condition as unfitting, rated 20%, with application of Veterans’ Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 20% disability rating.

CI CONTENTION: He elaborates no specific contentions regarding rating or coding and mentions no additionally contended conditions.

RATING COMPARISON:

* No VA C&P examination is in evidence for this condition.

ANALYSIS SUMMARY:

Reflex Sympathetic Dystrophy. The CI injured the right ankle in October 2007 (four months after entry onto active duty), during a training exercise. Initial service treatment records however document that there was no history of trauma and the method of injury was unknown. Range of motion (ROM) was painful but normal with no documented instability. At the same time he also came into contact with poison ivy, developing a rash on the right lower leg and ankle with a resultant cellulitis. Although the cellulitis resolved with treatment, he was left with residual right ankle swelling and pain, with paresthesias of the ankle and foot. X-ray examination 7 November 2007 showed some possible spurring of the anterior tibiotalar joint which may indicate previous trauma to the ankle joint (such spurring takes months to years following an injury). Podiatry consultation in June 2008 (10 months pre-separation) noted sensory loss that was not in a dermatomal pattern and right ankle weakness with calf atrophy. There was no tenderness in the lateral ankle ligaments (ROM was not documented). The examining podiatrist observed there was greater laxity of the right ankle compared to the left, but no ankle pain with inversion stress or anterior drawer stress. There were no trophic skin changes that can be seen with RSD. The CI walked with the right foot held in a varus position. The diagnosis was possible RSD; however, symptoms could be related to chronic ankle sprains and disuse secondary to the cellulitis in September-October 2007. The podiatrist recommended evaluation by neurology. MRI of the lumbar spine, performed in August 2008, was normal. Bone Scan of the right ankle demonstrated a likely right calcaneal stress fracture and stress reactions of the tibiotalar joints, worse on the right. No electrodiagnostic testing was performed. The NARSUM (neurology) on 22 September 2008 recorded persistent numbness and occasional burning sensation on the sole of the right foot when walking more than five to ten minutes and occasional ankle “giving out” causing him to fall. On examination, normal motor and sensory function was noted with abnormal gait secondary to posturing of the right foot (held in varus position per podiatry examinations). There was sight reddening of the lateral right foot without hair or nail changes that can be seen with RSD. ROM was not documented. The NARSUM diagnosis was RSD. Orthopedic consultation on 3 October 2008 (six months pre-separation) noted calcaneal stress fracture and lateral ankle instability with medial impingement, however, no comprehensive examination or comment on range of motion was included. The CI declined surgical treatment options for lateral instability with medical impingement and the orthopedic surgeon recommended proceeding with MEB as no further avenues for improvement were available. No VA compensation and pension evaluation (C&P) was performed. The VA Rating Decision (VARD) issued December 2009 noted the CI was unable to attend a scheduled VA examination on 23 September 2009, therefore his claim was decided based on the evidence of service and VA treatment records. Referenced in the VARD, without reports for review, were an MRI of the ankle showing only mild osteoarthritis, and arthroscopy with synovectomy demonstrating “articular loose body with synovitis and chronic ankle instability, both performed 4 months after separation.

The PEB and VA chose different coding options for the condition. The IPEB adjudicated the condition as RSD, coded 8799-8724 (analogous for internal popliteal nerve (tibial), with a 20% rating, the highest rating possible under this code. Peroneal tendonitis, lateral instability of the right ankle and calcaneal stress fracture were adjudicated as related category II diagnoses. The VA Rating Decision on 3 December 2009 (eight months post-separation) service connected right ankle synovitis with instability, coded 5271 (ankle, limited motion of), with a 10% rating.

The Board considered ratings of the IPEB and VA. Under Code 5271 an evaluation of 20 percent or higher requires ‘marked limited motion’ and is not warranted in the absence in the DES record of any goniometric ROM evaluations showing impaired motion. The PEB code (8799-8724) was used analogously with 20% assigned for moderate paralysis of the internal popliteal or tibial nerve. A higher rating of 30% under code 8621 (neuritis severe) is not supported by the record. Applications of VASRD 4.40 (functional impairment), 4.45 (DeLuca) and 4.59 (painful motion) were considered but would achieve only a minimal compensatory rating of 10% given absence in the record of objective evidence of significant increased functional loss due to pain on use, weakened movement, excess fatigability, in- coordination, or flare-ups.

The Board, after due diligence, found no additional route to any higher disability rating. Given the clinical presentation of pain and paresthesias, the IPEB rating for RSD as a moderately impairing condition analogized for nerve dysfunction is supported. All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudication for the ankle condition, coded 8799-8724, with a 20% rating. Additionally the Board supports no recharacterization of the PEB fitness adjudication for the peroneal tendonitis, lateral instability of the right ankle and calcaneal stress fracture conditions as related Category II diagnoses since the associated impairments overlapped with those attributed to the primary diagnosis and were subsumed under that rating.

Remaining Conditions. The other conditions identified in the DES file were high frequency hearing loss, right shoulder pain, corrective lenses, trouble sleeping, occasional low back pain and a healed laceration of the left wrist. None of these conditions were clinically active during the MEB period, none were the bases for limited duty and none were implicated in the NMA. These conditions were 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 glaucoma, bilateral joint condition of the hands and fingers and tinnitus 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 under DoDI 6040.44 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. In the matter of the right ankle RSD, peroneal tendonitis, lateral instability of the right ankle and calcaneal stress fracture conditions the Board unanimously recommends no change in the PEB adjudication. In the matter of the high frequency hearing loss in the left ear, right shoulder pain, corrective lenses, trouble sleeping, occasional low back pain, healed laceration of the left wrist or any other medical condition eligible for Board consideration; the Board unanimously agrees that it cannot recommend a finding of unfit for additional rating at separation.

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

______________________________________________________________________________

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20091223, w/atchs.

Exhibit B. Service Treatment Record.

Exhibit C. Department of Veterans' Affairs Treatment Record.

DEPARTMENT OF THE NAVY

SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374·5023

IN REPLY REFER TO

1850

CORB:003 15 Feb 2012

From: secretary of the Navy Council of Review Boards

To:

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref: (a) 0001 6040.44

Encl: (1) PDBR ltr of 19 Jan 2012

1. Pursuant to reference (a), the PDBR reviewed your case and forwarded· its recommendation (enclosure (1» to the Department of the Navy for appropriate action.

2. On 13 February 2012, the Assistant General Counsel (Manpower & Reserve Affairs) made a decision in your case by accepting the recommendation of the PDBR that no change be made to the characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation Board. For the reasons set forth in the enclosure, the Secretary determined your condition was appropriately rated by the Physical Evaluation Board at the time of your separation from service.

3. The Secretary's decision represents final action in your case by the Department of the Navy and is not subject to appeal or further review by the Board for Correction of Naval Records.

Copy to: PDBR