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AF | PDBR | CY2012 | PD 2012 00577
Original file (PD 2012 00577.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2012-00577
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20140723
SEPARATION DATE: 20030204


SUMMARY OF CASE: The available evidence of record reflects that this covered individual (CI) was an active duty LCpl/E- 3 ( 3521 / Organizational Automotive Mechanic) medically separated for a left ankle arthrofibrosis . The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards. He was placed on limited duty ( LIMDU ) and referred for a Medical Evaluation Board (MEB). The ankle condition , characterized as “ left ankle arthrofibrosis resulting in severe loss of motion , ” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded four other conditions ( left ankle instability status post [ s/p ] modified B rostrom, left ankle A chilles tendonitis s /p A chilles tendon debridement, recurrent and chronic left ankle synovitis and chronic left ankle pain) for PEB adjudication. The I nformal PEB adjudicated “ left ankle arthrofibrosis resulting in severe loss of motion of the left ankle” as unfitting, rated 20 % . The remaining conditions were determined to be n ot unfitting Category II (conditions that contribute to the unfitting condition). The CI appealed to the Formal PEB , which affirmed the PEB findings and rating .


CI CONTENTION: “Chronic Left Ankle Pain (Post - Operative Left Ankle Residuals) 20%, A djustment Disorder with Depressed Mood 1 0 %, Left residual Shoulder Strain 10%, Tinnitus 10%, Pseudofolliculitis Barbae 0 % (Service Connected), Left Ankle Scar 0 % (Service Connected), Gastritis 0 % (Service Connected) . ”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting ankle condition is addressed below. The contended adjustment disorder with depressed mood, left residual shoulder strain, gastritis, tinnitus and pseudofolliculitis barbae conditions were not identified by the PEB and are not within the DoDI 6040.44 defined purview of the Board. No additional conditions are within the DoDI 6040.44 defined purview of the Board. 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.


 RATING COMPARISON :

Service FPEB – 20021022
 VA - (1 Mo. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Left Ankle Arthrofibrosis 5271 20% Residuals, Postoperative Left Ankle 5010-5271 20% 20021219
Left Ankle Instability s/p Modified Brostrom CAT II No VA Entry
Left Ankle Achilles Tendonitis s/p Achilles Tendon Debridement CAT II No VA Entry
Recurrent a nd Chronic Left Ankle Synovitis CAT II No VA Entry
Chronic Left Ankle Pain CAT II No VA Entry
Other x 0 (Not in Scope)
 Other x 15 20021219
Rating: 20%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 200 60117 .

ANALYSIS SUMMARY:

Left Ankle Condition. The CI originally inverted his left ankle during a formation run in January 2000 which resulted in acute pain and swelling. X-rays were negative for fracture and he received conservative therapy for a mild (Grade 1) ankle sprain which included physical therapy and podiatry recommended inserts. Despite treatment, his left ankle pain continued. A bone scan performed in July 2000 revealed post-traumatic or inflammatory changes. Orthopedic consultation (September 2000) confirmed the history of severe left ankle sprain with resultant instability noting an anterior drawer test (specific test for ligament instability) of 2-3 millimeters. He underwent a surgical (Brostrom) procedure in June 2001 to correct the ligamentous instability. Surgery resolved the joint instability; despite two prolonged periods of limited duty, his pain and limited ankle range-of-motion (ROM) continued. In April 2002, he underwent additional debridement surgery for increasing Achilles tendinitis and surrounding ankle synovitis (inflammatory scar tissue…‘arthrofibrosis’). At the MEB narrative summary performed on 29 May 2002 (9 months prior to separation) the CI reported the inability to run, stand for longer than 10 minutes and walk without a limp. The physical examination noted moderate left ankle swelling with decreased ROM. The final diagnoses were simply the s/p surgical descriptions with symptomatic residuals. The VA Compensation and Pension examination performed on 19 December 2002 (2 months prior to separation) was clinically detailed and noted limited ROM, swelling of the left ankle and two well-healed non-adhering surgical scars measuring 3.5 inches on the back of the left foot and 2.75 inches on the lateral left ankle. The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Ankle ROM
(Degrees)
MEB ~ 8 Mo. Pre-Sep

Ortho ~ 5+ Mo. Pre-Sep

VA C&P ~ 6 weeks P re -Sep
Dorsiflexion (20 Normal) 5 10 5
Plantar Flexion (45) 10 - 10
Comment - -
§4.71a Rating 20 % 10%-20 % 20 %

The Board directs attenti on to its rating recommendation based on the above evidence . The PEB coded the ankle under 5271 (limited motion) rated at 20% specifying limited motion. The VA rated the ankle under the analogous coding of 50 10 -5 271 at 2 0% presumably noting limited motion by examination . The CI reported no post-MEB interim history of further injury, surgery, or other aggravations of his ankle condition and serial ROM examinations remained essentially unchanged. The entirety of ratings under code 5271 is 10% (moderate) or 20% (marked) impairment.

The Board considered alternate codes of 5270 (ankle; ankylosis) at 30%/40% or 5262 (impairment; tibia and fibula) at marked (30%) ankle disability. Albeit minimal, having the mere presence of a ROM did not support any ankylosis code. Additionally, although the tibia and fibula form part of the ankle joint, the arthrofibrotic and scarred down tissue causing the ratable limited motion is greatest at the talar bone which makes up the bulk of the ankle. Therefore, the Board considered code 5262 a poor clinical fit in this particular case. There are no alternate VA Schedule for Rating Disabilities (VASRD) compliant codes that are more beneficial to the CI than the current 20% rated by the PEB. Additionally, Board members acknowledged the presence of the surgical scars and agreed that the well-healed and non-adhering description clearly implied that the scars did not result in any separate duty limitations and therefore, not subjected to additional rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left ankle condition.

Other PEB Conditions. The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were left ankle instability s/p modified Brostrom procedure, left ankle Achilles tendonitis s/p Achilles tendon debridement, recurrent and chronic left ankle synovitis, and chronic left ankle pain. The Board’s main charge is to assess the fairness of the PEB’s determination that these conditions were indeed not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. All conditions were reviewed and considered by the Board.

Left Ankle Instability s/p Modified Brostrom (surgical) Procedure. Numerous post-surgical encounters indicated the complete resolution of further ankle instability.

Left Achilles Tendonitis s/p Debridement; Left Ankle Synovitis; Chronic Left Ankle Pain. None of these conditions were separately profiled while on LIMDU, implicated in the commander’s assessment, or noted as separately failing retention standards. All were reviewed by the action officer and considered by the Board. Members agreed that these residual conditions and resultant symptoms are subsumed under the ankle coding as specified in §4.71a and, in this case, rated under the primary arthrofibrotic condition. Additionally, there was no indication from the service treatment record that any of these conditions separately and significantly interfered with satisfactory performance of MOS requirements. All evidence considered, there is not reasonable doubt in the CI’s favor supporting re-characterization of the PEB’s fitness adjudication for any of the above listed conditions.


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 left ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended “residual conditions,” the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration.


        
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 20120602, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record







                 
XXXXXXXXXXXXXXX
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 5 Jan 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s 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:
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN


                                                      XXXXXXXXXXXXXXX
                                            Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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