RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200503 SEPARATION DATE: 20010930 BOARD DATE: 20130220 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (63H/Tracked Vehicle Mechanic), medically separated for a bilateral foot condition. She developed foot pain in early 2000 and was diagnosed with bilateral bunions, eventually requiring bilateral bunionectomies. She did not respond adequately to treatment to meet the physical requirements of her Military Occupational Specialty. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The foot condition was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Four other conditions (as identified in the rating chart below) were addressed by the MEB and also forwarded to the PEB as not meeting retention standards. Of these, only the low back pain (LBP) had been noted on the narrative summary (NARSUM) as failing to meet retention standards. The PEB adjudicated the bilateral foot condition as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated with a 10% disability rating. CI CONTENTION: “fibroids in uterus has led to hysterectomy. Scar on right foot has constant pain and foot hurts. Long term standing more than 10 mins bothers back, feet & legs. Last job I had to leave due to back pain and having to help left clients when transporting. Also was previously denied condition allergic rhinitis. I had to quit job as we due to environmental conditions at the same job. I have headaches daily my migraine cause nausea and I have to take topax twice a day to keep from having the aural portion of the migraine and the more severe pain. *Note you will see I was denied for some conditions.”(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 bilateral foot condition is addressed below. The requested not unfitting back pain, seasonal allergies, and cervical dysplasia conditions are within the scope of this Board. The not unfitting hypertension condition was not requested for review and is thus not within the defined scope. The migraine headache condition was not considered by the PEB and is therefore outside the scope 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 Army Board for Corrections of Military Records. The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected conditions continue to burden her; but, it must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions which resulted in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at separation. The Board likewise acknowledges the CI’s contention for rating of the various conditions noted above which were determined to be not unfitting by the PEB and emphasizes that disability compensation may only be offered for those conditions that cut short the member’s service career. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements, a disability rating will be recommended IAW the VASRD and based on the degree of disability evidenced at separation. RATING COMPARISON: Service PEB – Dated 20010731 VA - (3 Mos. Post-Separation) Condition Code Rating Condition Code Rating Exam Bilateral Metatarsal Pain s/p Bunionectomy 5299-5279 10% S/P Bunionectomy, Left Foot 5280 10% 20020114 S/P Bunionectomy, Right Foot 5280 10% 20020114 Chronic Low Back Pain Not Unfitting Chronic Low Back Sprain 5295 10% 20020114 Seasonal Allergic Rhinitis Not Unfitting Allergic Rhinitis 6522 NSC 20020114 Hypertension Not Unfitting Hypertension 7101 0% 20020114 Cervical Dysplasia Not Unfitting Fibroids 7615 10% 20020104 No Additional MEB/PEB Entries Other x 10 20020114 Combined: 10% Combined: 40% VARD 20021221 most proximate to date of separation. ANALYSIS SUMMARY: Bilateral Foot Condition. The first recorded visit for bilateral foot pain was on 28 January 2000 when she was diagnosed with bilateral bunions (hallux valgus). Conservative management was not adequate and she underwent bilateral bunionectomies. She had persistent pain in the right foot which led to a revision of the right great toe with revision of the soft tissue and an osteophyte. She continued to have pain which precluded meeting fully duty requirements and was issued a permanent L3 profile and referred to MEB. The NARSUM dictated on 18 July 2001, 2 months prior to separation. The CI reported bilateral foot pain as well as LBP. On examination, the left foot showed successful treatment of the hallux valgus condition after surgery. Dorsiflexion was 40 degrees and plantar flexion was 25 degrees. No tenderness was noted. The right great toe showed mild crepitus in flexion with 40 degrees of dorsiflexion and 10 degrees of plantar flexion. There was some dorsal tenderness over the joint (toe to foot). The scars were well healed and non-tender although there was still ongoing healing. At the VA Compensation and Pension (C&P) examination on 14 January 2002, 3 months after separation, the CI reported continued pain if she stood for long periods of time, but did not wear special shoes or even the recommended tennis shoes or sandals. She denied swelling and took no medications for pain. On examination, the gait was normal. She was able to walk on her heels, but had difficulty walking on her toes or the outside of her feet due to pain. The right foot showed hallux valgus which was not documented on the left. The scars on both feet were non- tender. The range-of-motion (ROM) of the feet was noted to be “good.” X-rays were normal other than bilateral mild hammer toes of the second and third digits; this is a separate condition from the bilateral hallux valgus. The Board noted that the PEB combined the left and right bunionectomies into a single unfitting condition rated at 10% utilizing the VASRD code 5279 for metatarsalgia. Although the right great toe was the more symptomatic, both were surgically treated, profiled and noted to limit duty. The Board determined that each great toe, status post bunionectomy, was separately unfitting. The Board then directed its attention to the rating recommendation based on the above evidence. The PEB combined the bilateral bunion condition into a single unfitting condition rated at 10% and coded 5279, metatarsalgia, the maximum under this coding option. The VA rated each toe separately at 10% and coded them 5280, hallux valgus, for a combined rating of 20%. The Board determined that this coding option is a more accurate option than the 5279 code utilized by the PEB and also provided a rating advantage to the CI. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board recommends a disability rating of 10% each for the bilateral hallux valgus conditions, coded 5280. Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the LBP, seasonal allergic allergies (SAR) and history of cervical dysplasia were not unfitting. 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. Only the LBP was profiled and judged to fail retention standards; none were directly implicated in the commander’s statement. All were reviewed by the action officer and considered by the Board. The examination of the back showed mild tenderness to palpation with reduced flexion on the NARSUM but normal ROM on the C&P examination; SAR was well controlled with medications; the cervical dysplasia was treated by cone biopsy during a break in service and subsequent testing was normal. There was no performance based evidence 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 any of the 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. 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 bilateral hallux valgus conditions, the Board unanimously recommends a disability rating of 10% each, coded 5280 IAW VASRD §4.71a. In the matter of the contended LBP, SAR and cervical dysplasia 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation: UNFITTING CONDITION VASRD CODE RATING Left Hallux Valgus with Metatarsal-Phalangeal Pain 5280 10% Right Hallux Valgus with Metatarsal-Phalangeal Pain 5280 10% COMBINED (w/ BLF) 20% 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 XXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXX, AR20130006075 (PD201200503) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)