Search Decisions

Decision Text

AF | PDBR | CY2013 | PD-2013-01545
Original file (PD-2013-01545.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01545
BRANCH OF SERVICE: MARINE CORPS          BOARD DATE: 20141104
SEPARATION DATE: 20040915


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PVT/E-1 (Initial Entry Recruit) medically separated for a right ankle and foot condition. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was referred for a Medical Evaluation Board (MEB). The right ankle and foot condition, characterized as “status post right fibula fracture with likely moderate mid foot sprain”, was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The Informal PEB adjudicated “status post right fibula fracture with likely moderate mid foot sprain” as unfitting, rated at 10%, with likely criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “Veteran experiences severe symptoms of arthritis in the right ankle/knee/foot, including sharp joint pain, stiffness, swelling, restricted ankle motion, and tenderness to the touch. This currently affects the veteran's ability to perform normal everyday activities and duties for work; symptoms that have progressively worsened over the years since the service connected injury”.


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 and foot condition is addressed below. The requested knee condition was not identified by the PEB, therefore is not within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application or, consider as otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20040629
 VA - (3 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Status Post Right Fibula Fracture with Likely Moderate Mid Foot Sprain 5099-5003 10% Weber Type-C Non-Displaced Right Distal Fibular
Fracture, Right Ankle And Foot		 5299-5271 20% 20040622
Other x 0 (In Scope)
 Other x 0
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 20041123 (most proximate to date of separation )





ANALYSIS SUMMARY:

Right Ankle and Foot Condition. Review of the service treatment record revealed that the CI initially sustained a right ankle injury in January 2004, while hiking. X-rays images showed a non-displaced fracture of the distal fibula (outside leg bone near the ankle), with no surgical indication required and therefore a cast was placed. There was continuous compliant of pain with an increase of weight-bearing activity level.

The narrative summary (NARSUM) dated 13 May 2004 (4 months prior to separation) the CI reported a constant dull aching pain in the right ankle and foot as well as the inability to bear weight without considerable increase of pain. The MEB Physical examination dated 10 June 2004 (3 months prior to separation), documented normal ankle strength, but omitted documentation regarding the CI’s gait. However, the examiner did note tenderness in both the distal fibula and the dorsal aspect of the foot. X-ray images revealed a well-healed right distal fibular fracture and normal ankle joint configuration.

At the VA Compensation and Pension (C&P) examination on 22 June 2004 the CI reported pain of the right fibula and right foot when standing or walking for 10 minutes. Pain was worsened by climbing stairs, lifting weight and prolonged standing or walking; unable to tolerate running. Examination showed right ankle swelling but no deformity. Gait was normal. Tenderness of the distal fibula and dorsal foot was present; painful motion was not mentioned. Additional limitation was reported after repetitive motion, but ROM after repetition was not measured. X-rays imaging showed questionable (incomplete) healing of the proximal portion of the fracture site.

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:

Right Ankle ROM
(Degrees)		 NARSUM ~ 4 Mos. Pre-Sep VA C&P ~3 Mo s . P re -Sep
Dorsiflexion (20 Normal) “25-30”* 20
Plantar Flexion (45) 45* 45
Comment +Tenderness, painful motion +Tenderness
§4.71a Rating 10% 10% (VA 20%)
            *ROM was passive, not active

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis), while the VA rated the condition at 20% using an analogous 5271 code (ankle, limited motion of). The Board agreed that the PEB and the VA properly subsumed the mid-foot sprain under the right fibula fracture condition, since rating each condition separately for the same disability is prohibited under §4.14 (avoidance of pyramiding). Board members agreed that there was sufficient evidence of painful motion to warrant a 10% rating IAW VASRD §4.59, but that limitation of ankle motion in evidence did not support a rating higher than 10%. Other routes to a higher rating were considered. Since ankle ankylosis was not present, rating under the 5270 or 5272 codes is not justified. However, Board members agreed that under an analogous 5262 code (tibia and fibula, impairment of), malunion with moderate ankle disability was present; thus a 20% rating was justified on this basis. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right fibula fracture with likely mid-foot sprain condition, coded 5299-5262.


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 fibula fracture with likely mid-foot sprain condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5262 IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Right Fibula Fracture with likely Mid-Foot Sprain 5299-5262 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130918, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record






                           XXXXXXXXXXXXXXX
         President
         Physical Disability Board of Review


MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
                  DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
        
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 8 Dec 14 ICO XXXXXXXXXXXXXXX
         (c) PDBR ltr dtd 15 Dec 14 ICO XXXXXXXXXXXXXXX
         (d) PDBR ltr dtd 10 Dec 14 ICO XXXXXXXXXXXXXXX
         (e) PDBR ltr dtd 24 Dec 14 ICO XXXXXXXXXXXXXXX
(f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
(f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
         (h) PDBR ltr dtd 12 Feb 15 ICO XXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (h).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a. XXXXXXXXXXXXXXX, former USMC : Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.

b. XXXXXXXXXXXXXXX, former USN : Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

c. XXXXXXXXXXXXXXX, former USN : Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.

d. XXXXXXXXXXXXXXX, former USMC : Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

e. XXXXXXXXXXXXXXX, former USMC : Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

f. XXXXXXXXXXXXXXX, former USMC : Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

f. XXXXXXXXXXXXXXX, former USMC : Disability separation with final disability rating of 20 percent (increased from 10%) effective date of discharge.

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.



          XXXXXXXXXXXXXXX
         Assistant General Counsel
         (Manpower & Reserve Affairs)

Similar Decisions

  • AF | PDBR | CY2012 | PD-2012-00912

    Original file (PD-2012-00912.pdf) Auto-classification: Denied

    Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, i.e. depression and PTSD, remain eligible for future consideration by the Army Board for Correction of Military Records. The Board evaluates DVA evidence proximate to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of fitness decisions and rating determinations for disability at the time of separation. At TDRL exit,...

  • AF | PDBR | CY2013 | PD-2013-02258

    Original file (PD-2013-02258.rtf) Auto-classification: Approved

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. Left 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...

  • AF | PDBR | CY2014 | PD-2014-02009

    Original file (PD-2014-02009.rtf) Auto-classification: Approved

    Post-Separation)ConditionCodeRatingConditionCodeRatingExam Right Distal Fibular Fracture5009-50030%Right Ankle, Chronic Sprain with History of Fracture of Distal Fibula527110%20031231Other x 0 (Not In Scope)Other x 3 RATING: 0%RATING: 10% *Derived from VA Rating Decision (VARD)dated 20100806(most proximate to date of separation (DOS)). Right Ankle ROM (Degrees)MEB ~12 weeks Pre-Sep PT ~4 weeks Pre-Sep VA ‘Ortho’ ~7 weeks Post-SepDorsiflexion (20 Normal) ‘full range of motion’‘within normal...

  • AF | PDBR | CY2014 | PD-2014-02015

    Original file (PD-2014-02015.rtf) Auto-classification: Approved

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. Post-Separation) ConditionCodeRatingConditionCodeRatingExam Bilateral Lower Extremity Stress Reaction w/o Evidence of Fractures5099-50220%Medial Stress Syndrome Tibial Shaft…Right Side52620%20140319Medial Stress...

  • AF | PDBR | CY2012 | PD2012 01179

    Original file (PD2012 01179.rtf) Auto-classification: Denied

    RATING COMPARISON : ServiceIPEB – Dated 20030221VA -( 2 weeks Pre-Separation)ConditionCodeRatingConditionCodeRatingExam Bilateral Medial Tibial Plateau Stress FractureR-5003-5262 L-5003-526210% 0%Stress Fracture, Lt. Medial Tibial Plateau and FemoralCondyle526220%*20030303Bilateral Medial Femoral Condyles Stress FractureCAT IIIStress Fracture, Right. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability...

  • AF | PDBR | CY2010 | PD2010-00591

    Original file (PD2010-00591.docx) Auto-classification: Denied

    His condition involved more an injury to his knee; the midshaft of the left knee and ankle, peroneal nerve, weakness and antalgic gait contributed to his pain. Left Lower Leg Condition. Exhibit C. Department of Veterans' Affairs Treatment Record.

  • AF | PDBR | CY2012 | PD2012 01677

    Original file (PD2012 01677.rtf) Auto-classification: Denied

    No other conditions were submitted by the MEB.The PEBadjudicated “left ankle trimalleolar fracture”as unfitting, rated 20%.The CI made no appeals, and was medically separated. 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 Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation. All members agreed that the C&P examination...

  • AF | PDBR | CY2010 | PD2010-00909

    Original file (PD2010-00909.docx) Auto-classification: Denied

    Left Ankle Condition . In the matter of the left ankle condition and compartment syndrome and all left lower extremity disability, the Board recommended coding of 5010-5262 and by a vote of 2:1 recommends a rating of 30% IAW VASRD §4.71a. In the matter of the left lower leg neurologic deficits, scars, and venous insufficiency conditions or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for separate...

  • AF | PDBR | CY2012 | PD-2012-00678

    Original file (PD-2012-00678.pdf) Auto-classification: Denied

    The chronic right lower extremity pain as requested for consideration meets the Chronic Right Lower Extremity Pain 5299‐5262 20% ↓No Addi(cid:415)onal MEB/PEB Entries↓ Combined: 20% Condition Status Post Right Distal Tibia and Fibula Fracture Medial Right Leg Scar Lateral Right Leg Scar Right Ankle Scars Left Hip Iliotibial Band Syndrome Code 5262 8627‐7804 7804 7804 5099‐5024 Combined: 20% Rating 0%* 10% 0% 0% 10% Exam 20030414 20030414 20030414 20030414 20030414 criteria prescribed in DoDI...

  • AF | PDBR | CY2014 | PD-2014-01332

    Original file (PD-2014-01332.rtf) Auto-classification: Denied

    The bilateral stress fractures, characterized as “chronic bilateral leg pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.No other conditions were submitted by the MEB.The Informal PEB adjudicated “bilateral tibial stress fractures”as unfitting;each rated 10% for a combinedrating of 20%. Bilateral leg X-rays on 14 January 2009 noted chronic stress changes along both tibiae.At the MEB examination performed on 12 March 2009, 2 months prior to separation, the CI reported...