Author: JOHN J. D'ORAZIO
Last saved by: WEATHERS, JANICE R SrA USAF AFRBA AFRBA/AFBCMR
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE NUMBER:  PD1200620
BRANCH OF SERVICE:  Army	BOARD DATE:  20130723
SEPARATION DATE:  20010930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, CW2/Warrant Officer 2 (922A/Food Service Specialist), medically separated for bilateral foot conditions.  The CI had a history of foot pain dating back to 1990 when he entered basic training.  The foot pain worsened during his military career.  He was diagnosed with bilateral hallux valgus and a hammer deformity of the right 2nd toe.  In September 2000, he underwent surgery for the aforementioned foot deformities, but continued to have persistent pain.  The bilateral foot pain condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Bilateral pes planus, hypertension (HTN) and migraine headaches conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated the bilateral foot pain and bilateral hallux valgus conditions as a single unfitting condition, rated 10%, with application 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.

CI CONTENTION:  “I am currently rated unemployable by the VA due to my multiple service connected conditions.  I have not been able to sustain employment since leaving the military. (continued)  3) Rated 70% within the first 12 months after service.”

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 bilateral pes planus, HTN and migraine headaches conditions requested for consideration and the unfitting bilateral foot conditions meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below.  Any other condition or contentions not requested in this application remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20010718 | VA*- (~2 Mos. Pre-Separation) – All Effective Date 20011001
Condition | Code | Rating | Condition | Code | Rating | Exam
Bilateral Foot Pain and Bilateral Hallux Valgus... | 5299-5279 | 10% | Hallux Valgus, Right | 5280 | 10%** | 20010809
| | | Hallux Valgus, Left | 5280 | 10%** | 20010809
| | | Hammer Toe, Right Second Toe | 5282 | 0% | 20010809
| | | Cold Injury Residuals, Right LE | 7122 | 10% | 20010809
| | | Cold Injury Residuals, Left LE | 7122 | 10% | 20010809
Bilateral Pes Planus | Not Unfitting | Flatfoot | 5276 | 30% | 20010809
HTN, Essential | Not Unfitting | Hypertension | 7101 | 10% | 20010809
Migraine Headaches | Not Unfitting | Migraine Headaches | 8100 | 30% | 20010809
No Additional MEB/PEB Entries | Other x 3 |
Combined:  10% | Combined:  70%
* Derived from VA Rating Decision (VARD) dated 20011024 (most proximate to date of separation)
** No change to final ratings derived from subsequent C&P exams

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him; but, 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 resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

The PEB combined bilateral foot pain and bilateral hallux valgus as a single unfitting condition, coded 5299-5279 with a disability rating of 10%.  This approach by the PEB reflects its judgment that the constellation of conditions was unfitting, but that each condition was not individually unfitting.  Since this is an intrinsic prerogative outside the scope of the VASRD, the Board does not recommend separate codes and ratings in this circumstance unless members agree that one or more conditions were separately unfitting independently of overall effect.  In support of a recommendation for two or more separate ratings derived from a PEB overall effect adjudication; members must be satisfied, based on a preponderance of the evidence, that each condition recommended for separate rating would have independently resulted in MEB referral and a PEB finding that the member was unfit due to physical disability.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself.  Thus, the Board must maintain the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Bilateral Foot Pain and Bilateral Hallux Valgus Conditions.  The narrative summary notes the CI had a history of foot pain dating back to basic training in 1990.  The foot pain progressively worsened with military service.  The CI was diagnosed with bilateral hallux valgus deformities (bunions) and hammer deformity of the right second toe.  He was treated with orthotics, nonsteroidal anti-inflammatory medications, and activity modification without relief.  In Sept 2000, he underwent bilateral bunionectomy and surgical correction of right hammer toe.  The CI reported worsening of his bilateral foot pain post-surgically.  At the MEB exam, the CI reported pain at the metatarsophalangeal joint (MTP) bilaterally which spreads to the entire foot.  He reported the pain as 8 on a scale of 1 to 10 and worse with weight bearing and running.  It was not relieved by Naprosyn.  The MEB physical examination noted bilateral healed surgical scars mildly tender to palpation, decreased range-of-motion at the first MTP bilaterally, and a normal neurologic examination.  The exam was also significant for the absence of calluses on the plantar surfaces of his feet.  Radiographic evaluation demonstrated chevron osteotomies of the first metatarsals and bilateral pes planus.

At the VA Compensation and Pension examination, a month prior to separation, the CI reported worsening of pain after surgery with an inability to stand for a prolonged period of time.  The examiner documented a careful gait reflecting bilateral foot pain, bilateral pes planus, well healed non-tender scars bilateral great toes, and continued bilateral hallux valgus; left 30 degrees and right 20 degrees.  

The Board first considered if the left and right feet, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Members agreed that the functional limitations in evidence justified the conclusion that each foot in isolation was integral to the CI’s inability to perform his MOS rating; and, accordingly a separate rating is recommended.

The PEB adjudicated the bilateral foot pain analogous to metatarsalgia, VASRD code 5279, with a disability rating of 10%.  The VA rated the bilateral foot condition separately as hallux valgus, coded 5280, at 10% for each foot for a combined rating of 20%.  Both the right and left foot were profiled and documented as painful despite medication and surgical management.  Both the right and left foot demonstrated radiographic pathology.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for each foot for a combined rating of 20%.

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were bilateral pes planus, HTN, and migraine headaches.  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 (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 profiled; none were implicated in the commander’s statement; and, none were judged to fail retention standards.  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.

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 foot pain condition, the Board unanimously recommends a separately unfitting determination and a disability rating of 10% for each foot with a combined rating of 20%, coded 5280 IAW VASRD §4.71a.  In the matter of the contended bilateral pes planus, HTN, and migraine 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 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
Left Hallux Valgus | 5280 | 10%
Right Hallux Valgus | 5280 | 10%
COMBINED/BLF | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120603, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXXXXXX, AR20140001857 (PD201200620)

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						     XXXXXXXXXXXXXXXXXXXXXX 
						     Deputy Assistant Secretary
						         (Army Review Boards)

PD1200620