RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:
      BRANCH OF SERVICE:  navy
CASE  NUMBER:   PD1100810                                         SEPARATION
DATE:  20061201
BOARD DATE:  20120511


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual  (CI)  was  an  active  duty  CTT2/E-5
(1733, Electronic Warfare Systems Technician),  medically  separated  for  a
right ankle condition  (osteochondral  defect,  right  talar  dome).   Right
ankle pain began following an inversion  injury  of  his  right  ankle.   He
underwent  ankle  surgery  (arthroscopy  with   debridement   and   drilling
microfracture) in June 2003.  He was treated with  various  medications  and
physical therapy.  He did  not  respond  adequately  to  treatment  and  was
unable to perform within his Rating or meet physical fitness standards.   He
was placed on limited duty and underwent a Medical Evaluation  Board  (MEB).
Osteochondritis dissecans was forwarded to  the  Physical  Evaluation  Board
(PEB)  as  medically  unacceptable  IAW  SECNAVINST   1850.4E.    No   other
conditions appeared on the MEB’s submission.  The PEB adjudicated the  right
ankle condition as unfitting,  rated  10%  with  application  of  SECNAVINST
1850.4E  and  Veterans  Administration  Schedule  for  Rating   Disabilities
(VASRD).  The CI made no appeals, and was medically  separated  with  a  10%
disability rating.


CI  CONTENTION:   “I  am  applying  for  medical  retirement  based  on  the
permanent nature of and lack of  reliable  or  effective  treatment  for  an
injury to my right ankle during military service in 2003  for  which  I  was
separated and the decrease physical  ability  and  function  resulting  from
this injury.  It was known by the PEB that separated me  from  service  that
this was a permanent injury that would not improve  but  no  retirement  was
awarded.  My condition as described in the Report of Medical Board dated  22
AUG 06 (included) has remained constant in general and has worsened in  most
situations.  I have been unable to achieve any  mitigation  in  pain  and/or
improvement in condition, I am now unable to bear weight constantly  on  the
ankle for durations  in  excess  of  5-10  minutes  or  participate  in  any
physical  activity  beyond  normal  walking.   My  levels  of  pain  without
activity (at rest and moving around the house) have increased  significantly
and bone spurs have formed at  the  site  of  the  injury.   The  VA  cannot
provide me with a medication that  works  more  effectively  than  Ibuprofen
which I take daily and provides me little to no relief from  pain.   I  have
sought current invasive and non-invasive  procedures  for  relief  and  have
been told by the VA that no recommended procedures exist  for  my  situation
and that the only avenue that I could pursue is to  have  an  ankle  fusion,
resulting in total loss  of  motion  in  my  right  ankle.   The  orthopedic
department at the Stratton VA medical center in Albany, NY  has  advised  me
NOT to pursue this procedure or an OATS procedure due  to  risk  of  failure
and to continue to endure the pain until new developments  are  made  and/or
the procedure becomes less impactive to my daily life (when I am older).   I
have returned to school because I am unable to  work  a  job  that  requires
more than 5-10 minutes of standing  at  a  time.   Since  my  disability  is
permanent, I am seeking medical retirement for access to military  hospitals
and the superior care and  treatment  that  they  provide  as  well  as  the
experience they have with disabling injuries.”


SCOPE OF REVIEW:  The Board wishes to clarify that the scope of  its  review
as defined in DoDI 6040.44 (4.a) is limited to those conditions  which  were
determined by the PEB to be specifically unfitting  for  continued  military
service; and, when requested by the CI, those condition(s)  “identified  but
not determined to be unfitting by the  PEB.”   The  Board  will  review  the
service rating for the unfitting  ankle  condition,  and  all  of  the  CI’s
contentions are related to the unfitting ankle  condition.   Any  conditions
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 (BCNR).


RATING COMPARISON:

|Service PEB – Dated 20060928   |VA (1 Mo. Pre Separation) – All         |
|                               |Effective 20061202                      |
|Condition                      |Code                            |Rating |
|Combined:  10%                 |Combined:  40%                          |


ANALYSIS SUMMARY:  The Board acknowledges the  sentiment  expressed  in  the
CI’s  application  regarding  the  significant  impairment   and   worsening
severity with which his service-aggravated  condition  continues  to  burden
him.  It is a fact, however, that the  Disability  Evaluation  System  (DES)
has neither the role nor the authority to  compensate  service  members  for
anticipated  future  severity  or  potential  complications  of   conditions
resulting in medical separation.  This role  and  authority  is  granted  by
Congress to the Department of Veterans’ Affairs (DVA).  The  DVA,  operating
under a different set of laws (Title 38, United States Code),  is  empowered
to compensate service-connected conditions and to  periodically  re-evaluate
said conditions for  the  purpose  of  adjusting  the  Veteran’s  disability
rating should the degree of impairment vary over time.  The  Board  utilizes
DVA evidence proximal to separation  in  arriving  at  its  recommendations;
and, DoDI 6040.44 defines a 12-month interval for special  consideration  to
post-separation evidence. The Board’s authority as defined in DoDI  6044.40,
however, resides in evaluating the fairness of  DES  fitness  determinations
and rating decisions  for  disability  at  the  time  of  separation.  Post-
separation evidence therefore is  probative  only  to  the  extent  that  it
reasonably reflects the disability and fitness implications at the  time  of
separation.

Right Ankle Condition.  Following surgery of his right ankle  in  2003,  the
CI appeared to function well until increasing  right  ankle  pain  in  2006.
Pain   was   with   weight   bearing,   impact   activities   or   prolonged
standing/walking.  Imaging indicated a large osteochondral defect  (OCD)  of
the right medial talar dome and  “at  least  three  osseous  fragments/loose
bodies measuring 1-3 mm are visualized within the medial  ankle  joint  just
above the talar dome.”  Medication and  physical  therapy  were  ineffective
and the CI was offered another surgical  repair  (OATS  procedures)  without
any guarantee that it would make things  any  better  and  it  might  things
worse.  CI elected not to have surgery (reasonable) and remained  unable  to
perform within his Rating.  The non-medical assessment (NMA) from  the  CI’s
commander stated the CI walked with a cane.

There were two goniometric range-of-motion (ROM)  evaluations  in  evidence,
with documentation of additional ratable criteria, which the  Board  weighed
in arriving at its rating recommendation.  The VA exam  from  February  2010
was noted as without significant change in ratable criteria  from  the  2006
VA exam, and too remote from separation to use on a rating at separation.




|ROM –R Ankle   |MEB ~4 Mo.     |VA C&P ~1 Mo. Pre-Sep          |
|               |Pre-Sep        |                               |
|Dorsiflexion   |0⁰             |20⁰                            |
|(0-20)         |               |                               |
|Plantar Flexion|20⁰            |20⁰                            |
|(0-45)         |               |                               |
|Comment        |Tenderness;    |Abnormal gait, limp on the     |
|               |pain on motion;|right; requires a cane for     |
|               |negative       |ambulation; pain on motion;    |
|               |anterior drawer|deformity on                   |
|               |and inversion  |dorsi-/plantar-flexion and     |
|               |stress;        |inversion; no effusion or      |
|               |neurovascularly|tenderness; pain, fatigue,     |
|               |intact; gait   |weakness with repetitive use   |
|               |not specified  |without change in ROM;         |
|               |               |sensory/motor normal           |
|§4.71a Rating  |10%-20% (PEB   |10%-20%                        |
|               |10%)           |                               |

The PEB and VA used different codes and ratings  for  this  condition.   The
PEB coding of 5099-5003 is analogous to arthritis at 10%; the VA  coding  of
5003-5271 is analogous to arthritis and uses the limited ROM  of  the  ankle
criteria at moderate for 10%.  The MEB exam  could  support  rating  at  20%
under 5271 for marked ankle limitation with  0⁰  of  dorsiflexion;  however,
the VA exam prior to separation  documented  dorsiflexion  to  20⁰  and  was
closer to the date of  separation.   There  was  no  objective  evidence  of
instability; no evidence for ankylosis of the ankle for rating  under  5270;
and there was not sufficient level  of  impairment  or  functional  loss  to
equate to “loss of use” of foot IAW VASRD §4.63.  Using the  ROM  coding  of
the right ankle (5271), the choice  would  be  either  moderate  at  10%  or
marked at 20% as the highest rating for the ankle.

The Board  deliberated  on  the  probative  values  of  the  two  exams  and
consideration  of  VASRD  §4.7  (higher  of  two  evaluations)   and   §4.40
(functional loss) in light of the radiographic pathology and the  consistent
antalgic gait and use of a cane.  After due  deliberation,  considering  all
of the evidence, the Board majority concluded that  there  was  insufficient
cause to recommend a change in the PEB 10% unfitting  adjudication  for  the
right ankle 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  right  ankle  condition  and  IAW  VASRD
§4.71a, the Board by a simple majority  recommends  no  change  in  the  PEB
adjudication.  The single voter for  dissent  (who  recommended  20%,  coded
5003-5027)  did  not  elect  to  submit  a  minority  opinion.   The   Board
unanimously agrees that there were no other conditions  eligible  for  Board
consideration  which  could  be  recommended  as  unfitting  for  additional
service disability rating.


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

|UNFITTING CONDITION                              |VASRD CODE  |RATING  |
|Osteochondral Defect Right Talar Dome            |5099-5003   |10%     |
|COMBINED    |10%     |








The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110925, 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)
       RECOMMENDATIONS

Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 29 May 12

    In accordance with reference (a), I have reviewed  the  cases  forwarded
by reference  (b),  and,  for  the  reasons  provided  in  their  forwarding
memorandum,  approve  the  recommendations  of  the   PDBR   the   following
individuals’ 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:

    - XXX XX  former USMC
    - XXX XX  former USMC
    - former USN, XXX-XX-
    - XXX XX  former USMC
    - former USN, XXX-XX-





      Assistant General Counsel
        (Manpower & Reserve Affairs)