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AF | PDBR | CY2012 | PD2012 01137
Original file (PD2012 01137.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxx        CASE: PD1201137
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130503
SEPARATION DATE: 20030915


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Cpl/E-4 (3521/Motor Transport Mechanic) medically separated for a right ankle condition. The CI sprained his right ankle in March 2002 while on duty. After unsuccessful conservative treatment, a Brostrom surgical procedure was performed in December 2002. Following this procedure he underwent additional physical therapy however his condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The right ankle condition, characterized as status post (s/p) right Brostrom procedure with continued loss of range of motion and pain was forwarded to the Physical Evaluation Board (PEB). The MEB also identified and forwarded five other conditions (see rating chart below) for PEB adjudication. The PEB adjudicated s/p right Brostrom procedure with continued loss of range of motion and pain as unfitting, rated 10%. The PEB found the CI’s s/p tear of anterior talofibular ligament (ATFL) and calcaneal fibular ligament (CFL) and sinus tarsi syndrome to be Category II; conditions contributing to the unfitting condition. The PEB also found the CI’s patellofemoral pain syndrome (PFPS), hypertension, and chronic tension headaches to be Category III; conditions that are not separately unfitting and do not contribute to the unfitting condition. The CI made no appeals and was medically separated.


CI CONTENTION: The CI simply stated: “Hypertension, migranes, Right ankle” [sic]


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 right ankle condition is addressed below. The Category II conditions as cited above are part of the unfitting right ankle condition and will be considered by the board. The requested hypertension and migraine conditions, which were determined to be not unfitting by the PEB, are likewise addressed below. The PFPS, identified as not unfitting by the PEB, was not requested for review and thus is not within the defined scope. 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 IPEB – Dated 20030714
 VA - (1 Mo. Pre Separation)
Condition
 Code Rating Condition Code Rating Exam
S/P Right Brostrom Procedure with Loss of Range of Motion and Pain 5271 10% Residuals, Brostrom Procedure, With Sinus Tarsi Syndrome Right Ankle 5271 10% 20030801
S/P Tear of Anterior Talofibular Ligament and Calcaneal Fibular Ligament Cat II
Sinus Tarsi Syndrome Cat II
Hypertension Cat III Hypertension 7101 10% 20030801
Chronic Tension Headaches Cat III Migraine and Tension Headaches 8199-8100 10% 20080801
Patellofemoral Pain Syndrome Cat III Patellofemoral Syndrome Left Knee 5262-5024 NSC 20030801
Patellofemoral Syndrome Right Knee 5262-5024 NSC 20030801
No Additional MEB/PEB Entries
 Residual Scar, Right Ankle 5271-7802 0% 20030801
Other x 4 20030801
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 30916 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for Service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans Affairs (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; 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.

Status Post Right Brostrom Procedure. The CI experienced a second-degree ankle sprain when he stepped in a hole while walking; X-rays of the ankle reportedly showed no fractures. Persistent pain was evaluated with magnetic resonance imaging, which showed a tear of the AFTL and CFL, and a small joint effusion; other joint ligaments and muscle tendons were intact. Due to pain and instability, he underwent uncomplicated surgical repair of the ligament damage (modified Brostrom procedure) on 27 December 2002. Despite physical therapy, he continued to experience pain and difficulty with range of ankle motion. The goniometric range-of-motion (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.





Right Ankle ROM
(Degrees )
 MEB ~ 4 Mo. Pre-Sep Sports Med ~ 3 Mo.
Pre-Sep
 VA C&P ~ 1 Mo. Pre -Sep
Dorsiflexion (20 Normal)
 <5 0 10
Plantar Flexion (45)
 10 20 30
Comment
 + Pain ful motion
§4.71a Rating
 10% or 20% (PEB 10 % ) 10 % 10 %

A sports medicine note in April 2003 reported normal ambulation. At the MEB exam in May 2003 (4 months after surgery and 4 months prior to separation), the CI reported daily pain rated as 3-4/10 (1-10 scale), which worsened to 6-7/10 after working all day, prolonged standing or jumping. Pain prevented light jogging. He wore a stabilizing ankle orthosis brace during the day for stability. The ankle exam noted tenderness of both the ATFL and the sinus tarsi. Strength was 5/5 (normal) with dorsiflexion and plantar flexion. Anterior drawer and talar tilt tests were negative for instability. At the VA Compensation and Pension (C&P) exam in August 2003 (7 months after surgery and 6 weeks prior to separation) the CI reported constant pain, decreased ankle mobility and an inability to run. The condition did not result in lost work time. The examiner observed a surgical scar and no ankle deformity or signs of abnormal weight bearing; and, noted a slight right-sided limp with the right foot turned outward. Inversion and eversion were limited, but strength and sensation were normal. A right ankle X-ray was normal.

The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA both assigned a 10% rating under the 5271 code (ankle, limited motion of). Due to the time elapsed since surgery, the VA exam was more reflective of a healed state and therefore assigned higher probative value in the Board’s deliberations. Board members agreed that “moderate” limitation of ankle motion was present at this exam, and therefore the 10% rating was justified. Since ankylosis was not present, there were no routes to a higher rating under the 5270 or 5272 codes. The Board also concluded that the PEB properly subsumed the s/p tear of anterior talofibular and calcaneal fibular ligaments, and the sinus tarsi syndrome conditions as related category II conditions. 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 status post right Brostrom procedure condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the hypertension and chronic tension headaches were 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.

Hypertension was diagnosed in October 2001, and blood pressures were subsequently controlled with antihypertensive therapy. Evaluation for secondary causes of hypertension was negative. The VA examiner noted a good response to the medical therapy and no functional impairment.

Chronic Tension Headaches began in 2001 but prophylactic treatment was not instituted until the time of the MEB. The CI reported daily headaches at the MEB exam. A follow-up clinic note indicated the CI was doing well on the new headache medicine regimen. At the VA exam, the CI reported headaches occurring about every 4 months that lasted 24 hours and prevented him from working. The hypertension and chronic tension headaches conditions were not profiled or implicated in the non-medical assessment and were not judged to fail retention standards. Both conditions were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the either of these contended conditions and so no additional disability ratings are recommended.


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 s/p right Brostrom procedure condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended hypertension and chronic tension headaches 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Status Post Right Brostrom Procedure 5271 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 201207012, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         xxxx
         Director of Operations
         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 19 Jun 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, 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:
- x former USMC
- x former USMC
- x former USMC
- x former USN
- x former USMC
- x former USMC
- x former USN
- x former USMC


                                                      xxx
                                                     Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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