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AF | PDBR | CY2012 | PD2012 01552

Original file (PD2012 01552.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XX CASE: PD1201552
BRANCH OF SERVICE: NAVY BOARD DATE: 20130502

SEPARATION DATE: 20011031

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty FC1/E-6 (1624/Fire Controlman) medically separated for bilateral post-traumatic arthrosis of the ankles. The CI had a long history of bilateral ankle pain and instability. He had recurrent injuries to both his ankles for many years. After many procedures and treatments, the bilateral post-traumatic arthrosis condition could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The bilateral post-traumatic arthrosis of the ankles condition was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded three other related diagnoses (see rating chart below) for PEB adjudication. The PEB adjudicated the bilateral post-traumatic arthrosis of the ankles condition rating each ankle 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and determined to be C ategory 2; conditions that contribute to the unfitting condition but are not separately ratable . The CI made no appeals and was medically separated.

CI CONTENTION: “My Rating decision from the VA, decided immediately after I was discharged, rated me at 30%. Beyond this, I also do not believe that my initial military rating included or took into consideration all of my medical issues that contributed to my military discharge. The most serious of these issue being my ankle issues, both Left and Right ankles, for which I had surgery while on active duty. According to the "Report of Medical Board" which I submitted a copy of: Both of my ankles show plantar flexion at 40° and dorsiflexion at more than 10% - I do not believe these statements nor other statements of issues with both my ankles were considered when issuing my final rating. I also, feel that both the VA and Military did a poor job of looking at the statements made within this same report of issues with both ankles and rather focused on just the left ankle which at that time was the one with the most significant issues. I also had other issues, which the Department of Veterans Affairs took into consideration in their evaluation that the Military did not. I tried to bring this up to the medical board at the time of the review but was told that they could not or would not evaluate any issues that did not directly contribute to my discharge. These other issues being: Significant Right Ankle Scarring left form my surgery that is still causing me issues. also, had Reoccurring Prostatitis and Epididymitis (I included copies of my Military medical records showing the latter two issues). I believe that the VA rating of 30%, while still low considering the severity of my injuries and current pain, is more accurate than that which was assigned to me by the military medical board. I can provide a copy of all my medical records if required. Thank you for your consideration.”

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 bilateral post-traumatic arthrosis condition is addressed below; and, 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 IPEB – Dated 20010827	VA - (~4 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Right Ankle Post Traumatic Arthrosis	5010-5003	10%	Post Traumatic Arthrosis, Right Ankle; s/p Surgical Repair	5271	10%	20010913
Left Ankle Post Traumatic Arthrosis	5010-5003	10%	Post Traumatic Arthrosis, Left Ankle; s/p Surgical Repair	5271	10%	20010913
Left Ankle Subtalar Arthrosis	Cat II
Rt Ankle Post. Tibial Tendonitis s/p Surgery
Bilat. Ankle Instability, Surgically Treated
No Additional MEB/PEB Entries	Scar R ankle 10% NSC X2	20010913
Combined: 20%	Combined: 30%

Derived from VA Rating Decision (VA RD ) dated 200 20220 (most proximate to date of separation [ DOS ] ).

ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veteran Affairs (DVA) but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all 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’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 VASRD standards, based on severity at the time of separation.

Bilateral Ankle Post Traumatic Arthrosis. The CI had a long history of bilateral ankle pain and instability secondary to recurrent injuries beginning in 1993 including an avulsion chip fracture of the right superior talus incurred in 1993 while playing basketball and multiple sprains incurred in sports and running. He underwent surgical stabilization of the left ankle in May 1997. Right ankle surgery was performed on January 2001 and consisted of arthroscopic debridement, ossicle excision and lateral ligament reconstruction. The surgeries improved ankle stability but the CI experienced continued pain interfering with vigorous activities. The MEB narrative summary 18 June 2001 reported the CI complained of mild pain associated with morning stiffness and ankle achiness after activity. The left ankle was more bothersome than the right. On examination of both ankles, the gait was normal, with normal limb alignment, and without ankle instability. Upon examination of the right ankle there were no sinus tarsi or medial pain and the surgical portals were well healed. The right ankle range-of-motion (ROM) was near normal as recorded in the chart. The examiner considered the right ankle condition improved, with good stability. On examination of the left ankle, there was a well healed incision, tenderness to palpation, as well as pain in the sinus tarsi and medial side of the left ankle. ROM of the left ankle was also near normal as recorded in chart above however limited inversion of the left ankle was noted. The examiner noted that the most recent X-ray exams evidenced posttraumatic changes of both malleolus with calcification in the soft tissue. The VA Compensation & Pension (C&P) examination; 13 September 2001, approximately 6 weeks prior to separation, noted pain in both ankle joints exacerbated by cold weather, walking, climbing stairs. The CI did not use any ambulating device or corrective shoes, he was able to do daily living activities and there was no limitation on standing or walking. On examination, the gait was normal. The examiner noted stiffness of the ankles and tenderness without inflammation. ROM of both ankles was normal, as recorded in the chart except for limited left ankle inversion. The goniometric 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.

Ankle ROM (Degrees)	MEB ~5 Mos. Pre-Sep (20010618)	VA C&P ~ 2 Mos. Pre-Sep (20010913)
	Left	Right	Left	Right
Dorsiflexion (20 Normal)	15	15	20	20
Plantar Flexion (45)	40	40	45	45
Comment	Tenderness No instability Gait normal	Tenderness No instability Gait normal	Tenderness Gait normal	Tenderness Gait normal
§4.71a Rating	10%	10%	10%	10%

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated a 10% rating for post-traumatic arthrosis (degenerative arthritis) of each ankle under 5003 (degenerative arthritis). The VA assigned a 10% disability rating for each ankle (coded 5271) citing stiffness and tibial-talar tenderness of the ankles and the limited inversion of the left ankle. The Board noted the bilateral ankle ROM documented by C&P examination proximate to separation were normal except limited left ankle inversion. The Board agreed that a 10% rating for each ankle was supported considering pain with motion (§4.59) or functional impairment (§4.40). The Board noted a higher rating could not be assigned under codes 5270, 5271, 5272 or 5262 as there was no ankylosis or limited ROM to warrant a higher rating. The Board also noted that a higher combined rating was not possible under code 5003 for involvement of two major joints. The Board noted the three additional diagnoses determined to be Category 2 conditions (conditions that contribute the primary unfitting condition but are not separately ratable) were intertwined diagnoses and the overall ankle impairment from all listed diagnoses were subsumed under the ratings for the ankles by both the PEB and the VA for each ankle. More than one rating based on the same impairment is prohibited (§4.14 avoidance of pyramiding). The VA also assigned a separate 10% rating for painful scar. By precedent, the Board does not recommend separation rating for scars unless their presence imposes a direct limitation on fitness. The Board reviewed service treatment records and did not find evidence that a tender or painful scar separately interfered with duty and therefore a separate rating was not recommended. 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 bilateral (right and left) ankle post-traumatic arthrosis 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. In the matter of the bilateral post-traumatic arthrosis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. 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
Right Ankle Post Traumatic Arthrosis	5010-5003	10%
Left Ankle Post Traumatic Arthrosis	5010-5003	10%
COMBINED W/BLF	20%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120831, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record

         XXX
         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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AF | PDBR | CY2012 | PD2012 01552

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