RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

                                                   BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20021115 

 
NAME:  XXXXXXXXXXX 
CASE NUMBER:  PD1200475                                                  
BOARD DATE:  20130124 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered individual (CI) was an active duty CPL/E-5 (0311/Infantry), medically separated for right 
ankle anterior impingement, Grade II and left ankle subtalar pain, possible sinus tarsi syndrome.  
The CI had a bilateral eversion injury while running in February 2001.  The CI did not improve 
adequately  with  treatment  to  meet  the  physical  requirements  of  his  Military  Occupational 
Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) 
and  referred  for  a  Medical  Evaluation  Board  (MEB).    Two  other  conditions,  identified  in  the 
rating  chart  below,  were  also  forwarded  by  the  MEB.    The  Physical  Evaluation  Board  (PEB) 
adjudicated  the  right  and  left  ankle  conditions as  unfitting,  rated  10%  and  10%  respectively, 
with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining 
conditions were determined to be Category III (not separately unfitting and do not contribute 
to the unfitting condition).  The CI made no appeals, and was medically separated with a 20% 
combined disability rating.   
 
 
CI CONTENTION:  “The branch only awarded 20%, but the VA awarded an additional 10%.” 
 
 
SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in DoDI 
6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined 
by the PEB to be specifically unfitting for continued military service; or, when requested by the 
CI, those condition(s) “identified but not determined to be unfitting by the PEB.”  The ratings 
for unfitting conditions will be reviewed in all cases.  The conditions L5-S1 radiculopathy and 
degenerative disc disease (DDD) as requested for consideration meet the criteria prescribed in 
DoDI  6040.44  for  Board  purview;  and,  are  addressed  below,  in  addition  to  a  review  of  the 
ratings  for  the  unfitting  conditions.    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:   
 

10% 

Code 

Sinus 

Ankle 

Rating 

Anterior 

5299-5003 

Service PEB – Dated 20020826 
Condition 
R 
Impingement, Grade II 
L  Ankle  Subtalar  Pain, 
Possible 
Tarsi 
Syndrome 
CAT III 
L5-S1 Radiculopathy 
Degenerative Disc Disease 
CAT III 
↓No Additional MEB/PEB Entries↓ 
Combined:  20% 
*Bilateral factor of 1.9 added for diagnostic codes 5271, 5271   
** VA C&P not in evidence 
 

5299-5003 

10% 

with 

5271 

Code 

Rating 

VA (7 months Pre-Separation)**– All Effective Date 20021116 
Condition 
R  Ankle  Anterior 
Chronic 
Impingement 
Mild 
Degenerative Changes per X-Ray 
Chronic  L  Ankle  Posterior  Tibial 
Tendonitis/Peroneal Tendonitis 
Lumbar  Spine,  DDD  L5-S1  with 
Radiculopathy 
Not Service-Connected x 2 
Combined:  30% 

10%* 

10%* 

5271 

5237 

10% 

STR 98-02 

STR 98-02 
 

Exam 

STR 98-02 

improvement  despite  conservative  treatment  to 

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  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 
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  all  service-connected  conditions  and  to 
periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating 
should the degree of impairment vary over time. 
 
Right and Left Ankle Condition.  The CI had a bilateral eversion injury while running in February 
2001  with  slow 
include  nonsteroidal 
medications, LIMDU, orthotics, and physical therapy (PT).  Orthopedics initially evaluated the 
bilateral ankle pain with magnetic resonance imaging (MRI) of each ankle.  The MRI of the right 
and left ankle/hindfoot revealed findings consistent with old chronic high-grade injuries of the 
tibiofibular  ligament  on  the  right  and  the  lateral  collateral  ligament  on  the  left.    On  the  left 
there was also a low to intermediate injury to the anterior tibiofibular ligament.  The remaining 
ligaments of both ankles were intact.  There was an incidental finding of bony spurring about 
the fourth tarsometatarsal joint of the right foot and there was mild bony irregularity involving 
the lateral malleolus of the left ankle.  Orthopedics attempted once to treat with injections of 
the ankles  yet  the pain remained unchanged  which  was  described  as  intense,  sharp,  located 
over the anterolateral bilateral ankle, a 6-7 of 10 in intensity, left greater than right, worsened 
with walking, standing and prevented him from running.  The CI additionally reported new pain 
of the 3rd, 4th and 5th toes and burning pain of the left anterior lateral foot.  The orthopedic 
examiner diagnosed bilateral subtalar joint pain, possible left superficial peroneal nerve neuritis 
and recommended a bone scan.  A month prior to the MEB narrative summary (NARSUM), the 
orthopedic exam demonstrated bilaterally; pain with eversion, sinus tarsi and lateral pain right 
greater  than  left,  normal  extensor  hallicus  longus  strength,  normal  lower  extremity  reflex 
findings,  superficial  peroneal  nerve  tenderness  on  tapping  (site  not  clear  in  the  evidence), 
decreased sensation of the right great toe, a nontender back exam and negative straight leg 
raise  test  bilaterally  (provocative  test  for 
  The  examiner  thus 
recommended a MRI and an electromyogram (EMG) of the lumbar spine (L-spine) to rule out 
herniated disc disease or pathology of the superficial peroneal nerve.  The MRI of the L-spine 
and the EMG were not in evidence for review.  The non-medical assessment documented the CI 
had not been able to serve in a billet appropriate for a Marine since March 2001 due to the 
inability to prolong walk, stand, tactical displacement or perform the required MOS training and 
physical fitness testing.  There were two range-of-motion (ROM) evaluations in evidence, with 
documentation of additional ratable criteria, which the Board weighed in arriving at its rating 
recommendation; as summarized in the chart below.   
 

lumbar  disc  disease). 

Ankle ROM 
degrees 

Ortho~12 Mo. Pre-Sep 

NARSUM~7 Mo. Pre-Sep 

Left 

Right 

Left 

Right 

Dorsiflexion (20 Normal)  FROM 
Plantar Flexion (45) 
FROM 
Pain 
extreme 
of motion 
10%* 

§4.71a Rating 

Comment 

*Conceding painful motion §4.59 
 

with 
ranges 

20 
45 
Pain 
extreme 
of motion; 
10%* 

with 
ranges 

- 
- 
Pain 
inversion 

with 

Mildly dec 
- 
Silent to painful 
motion 

10%* 

10% 

   2                                                           PD1200475 
 

The  MEB  NARSUM,  dictated  7  months  before  separation,  documented  the  CI’s  reported 
wearing  of  braces  for  activities    The  MEB  exam  demonstrated;  right  ankle  tenderness  over 
lateral malleolus and lateral joint line; no crepitus, no instability and no joint effusion.  The left 
ankle  demonstrated;  tenderness  in  the  sinus  tarsi  and  over  the  superficial  peroneal  nerve 
where  there  was  a  positive  Tinel’s  sign  (provocative  test  for  irritated  nerve)  and  pain  with 
inversion.  The MEB examiner documented the bone scan revealed some increase uptake in the 
L5-S1  area  and  that  the  foot  and  ankle  specialists  felt  that  his  left-sided  foot  pain  may  be 
related to the superficial peroneal nerve (SPN).  The MEB examiner further documented the CI 
had  undergone  epidural  steroid  injections  which  had  decreased  his  back  pain  but  had  not 
resolved his left foot pain.  There were no service treatment records (STR) in evidence to which 
corroborate the care for the back as documented by the MEB examiner.  A VA Compensation 
and Pension exam was not completed and the VA rating decision was based on the STRs. 
 
The Board directs attention to its rating recommendation based on the above evidence.  This 
rating  includes  consideration  of  functional  loss  lAW  VASRD  §4.10  (Functional  impairment), 
§4.40  (Functional  loss),  and  §4.59  (Painful  motion).    The  PEB  and  VA  chose  different  coding 
options for the condition, but this did not bear on rating and both were §4.71a—Schedule of 
ratings–musculoskeletal system.  The PEB assigned each ankle 10% coded analogous with the 
ankle diagnostic codes to the diagnostic 5003 code (arthritis, degenerative) for painful motion 
and positive  X-ray  findings  which  is  consistent  with  §4.71a.   The  Board agreed there  was no 
evidence of incapacitating episodes to support additional or a 20% rating under the 5003 code.   
The VA assigned 10% each ankle coded 5271 (limitation of ankle motion) for likely moderate 
limitation as the specifics of the rating decision were not in evidence.  The Board considered the 
VA’s chosen code 5271 and agreed the evidence not support the higher 20% criteria for marked 
limited motion of the ankles.  Finally the Board considered VASRD code 8722 for the left ankle.  
While the evidence suggests a herniated disc disease to implicate the SPN as the source of left 
ankle and foot pain, the MEB exam does not reflect neurologic signs for lumbar disc disease.  
The evidence, however, may also suggest a pathologic process of the distal superficial peroneal 
nerve with the positive Tinel’s sign.  The Board agreed therefore the left ankle condition could 
either be coded under a musculoskeletal code or a neurologic code but not both, IAW VASRD 
§4.14 (Avoidance of pyramiding).  Therefore, the Board considered the 8722 code and agreed 
the  evidence  does  not  support  the  higher  20%  rating  for  severe  neuralgia.    After  due 
deliberation,  considering  all  of  the  evidence  and  mindful  of  VASRD  §4.3  (Resolution  of 
reasonable  doubt),  the  Board  concluded  that  there  was  insufficient  cause  to  recommend  a 
change in the PEB adjudication for the right and left ankle condition.   
 
Contended PEB Conditions.  The conditions adjudicated as Category III (not separately unfitting 
and do not contribute to the unfitting condition} by the PEB were L5-S1 radiculopathy and DDD.  
The  Board’s  first  charge  with  respect  to  these  conditions 
is  an  assessment  of  the 
appropriateness of the PEB’s fitness adjudications.  The Board’s threshold for countering fitness 
determinations is higher than the VASRD §4.3 (Resolution of reasonable doubt) standard used 
for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” 
standard.    None  of  these  conditions  were  in  evidence  on  a  LIMDU.    These  conditions  were 
incidentally diagnosed while further evaluating the left ankle condition for possible lumbar disc 
disease or S1 pathology without any evidence of back pain.  This is further corroborated with 
the final orthopedic STR entry after this exam which reflects the CI was forwarded to the MEB 
for only bilateral unresolved ankle pain.  All were reviewed by the action officer and considered 
by the Board.  There was no indication from the record that any 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 any of the contended conditions; 
and, therefore, no additional disability ratings can be recommended. 
 
 

   3                                                           PD1200475 
 

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 and left ankle condition and IAW VASRD §4.71a, the 
Board  unanimously  recommends  no  change  in  the  PEB  adjudication.    In  the  matter  of  the 
contended L5-S1 radiculopathy and the DDD conditions, the Board unanimously recommends 
no change from the PEB determinations.  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 
Right Ankle Anterior Impingement, Grade II Condition 
Left Ankle Subtalar Pain, Possible Sinus Tarsi Syndrome Condition 

VASRD CODE  RATING 
5299-5003 
5299-5003 

10% 
10% 
COMBINED (w/ BLF)  20% 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120604, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 
 

 

           XXXXXXXXXXXXXX 
           Director 
           Physical Disability Board of Review 

   4                                                           PD1200475 
 

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 08 Feb 13 
 

      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 
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: 
 
 

 

 

 

     

 
 
 
 
 
 
 
 

-  XX former USMC 
-  XX former USMC 
-  XX former USN 
-  XX former USMC 
-  XX former USMC 
-  XX former USN  
  

 

 
      
 
 

 
 
 
 

 
 
 
 

 
 
 
 

 
 
 
 

XXXXXXXXX 
  Assistant General Counsel 
     (Manpower & Reserve Affairs) 
   

   5                                                           PD1200475