RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXX BRANCH OF SERVICE: marine corps

CASE NUMBER: PD1000581 SEPARATION DATE: 20080430

BOARD DATE: 20110721

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve member LCpl (0311 / Infantry Rifleman) medically separated for right ankle instability. The CI injured his right ankle during a 2006 deployment. He did not respond adequately to treatment and was unable to perform within his military occupational specialty (MOS) or meet physical fitness standards. He was issued a placed on limited duty and underwent a Medical Evaluation Board (MEB). The right ankle condition (listed as “other and unspecified injury to knee leg, ankle, and foot” on NAVMED 6100/1) was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. The PEB adjudicated right ankle instability as unfitting, rated 10% with application of SECNAVINST 1850.4E. The CI made no appeals and was medically separated with a 10% disability rating.

CI CONTENTION: “Injured while on active duty in combat. PEB determined unfit to continue career in the Marine Corps. Permanent physical pain, disability, and limitations. Routine medical care in VA. Any employment severely and negatively impacted.” He elaborates no specific contentions regarding rating or coding and mentions no additionally contended conditions.

RATING COMPARISON:

*VA Rating Decision 20081222; VA lists date of separation from active duty as 20061130 –on active duty orders for medical care after that time to 20071113; separated from Reserves 20080430.

**Right ankle 10% from 20061201; 100% from 20070205 (convalescent rating post-surgery); 20% from 20070501; 10% from 20070801; 20% from 20090227.

*** PTSD service connected rating 50% effective 20090227; C&P examination 20090805.

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impact that his service-incurred conditions have had on his quality of life. However, the military services, by law, can only rate and compensate for those conditions that were found unfitting for continued military service based on the severity of the condition at the time of separation and not based on possible future changes. The VA, however, can rate and compensate all service connected conditions without regard to their impact on performance of military duties, including conditions developing after separation that are direct complications of a service connected condition. The VA can also increase or decrease ratings based on the changing severity of each condition over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to 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. A “crystal ball” requirement is not imposed on the service PEB’s by the Board and the 12-month window specified in DoDI 6040.44 is appropriate for rating comparisons but not for new developments after separation.

Right Ankle Instability: The CI twisted his ankle while on patrol in Iraq in September 2006 and subsequently underwent surgical repair for instability (repair of torn tendon and ligaments) in February 2007. Although his treating surgeon indicated successful correction of the instability, the CI experienced residual symptoms of pain, ankle fatigability and weakness with prolonged standing or running that prevented performance of physically demanding military duties. At the time of the narrative summary in February 2008, the CI reported pain with standing more than 30 minutes, walking more than 45 minutes, driving for prolonged periods, and inability to run more than a mile. On examination, there was no swelling or instability. The right ankle dorsiflexed to 30° (normal 20°) and plantar flexed to 40° (normal 45°). The examiner noted some right ankle weakness and decreased position sense. A 13 February 2008 follow up with his treating surgeon noted right ankle fatigue and weakness with use but no clicking, popping, locking, or propensity to roll the ankle. The ankle bothered him while driving and with activity, particularly running. On examination, the gait was normal, strength was normal, and range of motion (ROM) was documented to be non-painful and the same as the normal left ankle. There was no instability with specific provocative testing. There was tenderness and the orthopedic surgeon determined the CI’s residual ankle pain was due to anterolateral ankle impingement and recommended consideration for additional surgery (CI later underwent surgery for impingement, one year after separation). At the time of a VA compensation and pension (C&P) examination in September 2008 approximately five months after separation gait was normal, there was no swelling or subluxation, but there was tenderness of the right ankle. The right ankle dorsiflexed to 20° (normal 20°) and plantar flexed to 40° (normal 45°) with pain at end ROM. The VASRD rating guidance for ankle conditions bases ratings on ankylosis (5270) and limitation of motion (5271). When a minimum rating cannot be attained using these codes, the joint may be rated 10% under 5003. The VA rated the right ankle condition 10% using 5271, for moderate loss of ROM, while the PEB rating 10% using 5299-5003. Board members agreed the preponderance of evidence indicated that the CI’s ankle ROM at the time of separation did not approach moderate loss and concluded the PEB appropriately rated using 5003. All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the left ankle condition.

Remaining Conditions. Other conditions identified in the MEB history and physical examination included hearing loss, memory loss after returning from Iraq, and upper back and neck pain. None of these conditions were clinically or occupationally significant during the MEB period, none were the basis for limited duty and none were implicated in the commander’s assessment. 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, one year following separation, the CI was diagnosed and received a VA service connected rating for posttraumatic stress disorder (PTSD). PTSD was not documented in the Disability Evaluation System (DES) file. At the MEB medical exam on 19 February 2008 the CI denied symptoms of frequent nervous trouble of any sort (anxiety or panic attacks), trouble sleeping, depression, or excessive worry. 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 instability condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication at separation. In the matter of any other medical conditions eligible for Board 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, as follows:

______________________________________________________________________________

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20100416 w/atchs.

Exhibit B. Service Treatment Record.

Exhibit C. Department of Veterans' Affairs Treatment Record.

President, 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, FORMER USMC, XXX XX XXXX

Ref: (a) DoDI 6040.44

(b) PDBR ltr dtd 23 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 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.

Assistant General Counsel

(Manpower & Reserve Affairs)