RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1201340
BRANCH OF SERVICE:  Army	BOARD DATE:  20131022
SEPARATION DATE:  20040106

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard PVI/E-1 (11C00/Indirect Fire Infantryman) medically separated for bilateral foot and ankle conditions.  The CI first began to experience pain from bilateral lower extremity overuse injuries in 2002, but did not respond to conservative treatment to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Chronic foot pain, right greater than left, secondary to stress fractures and stress reactions characterized as not meeting retention standards; and old fracture of the right lateral malleolus was characterized as medically acceptable and 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 and ankle pain conditions as unfitting, rated 0%, with likely application of Department of Defense Instruction (DoDI) 1332.39.  The fracture of the right lateral malleolus condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have permanently broken bones in every bone in both legs and feet, which is the original reason for my medical separation, (continued) but is not the reason listed in my VA file.  I think it’s listed as limited range of ankle movement, which is the least of my problems:  hips and knees have been way worse from the start.  Also, the Doctor in GA that started my medical board told me I should be at 50%-60% for how bad my bone scan looked.  I haven’t received treatment for this, but I have also suffered emotionally.  I still have legs, but I constantly think about how I’m not able to run or jump without possibly breaking a bone, or dislocating my knee (the latter of which has happened several times).  I also have neck and back problems from limping for the last 10 years.  I was always active before my injuries; Rugby, basketball, football, hiking and camping, but can’t anymore.  Sorry for my hand-writing.”

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 ratings for the unfitting bilateral foot and ankle pain conditions and associated not unfitting right lateral malleolus condition, as per the contention, are addressed below.  The contended bilateral legs, hips, knees; mental health (suffer emotionally), neck and back conditions were not identified by the MEB or PEB, and thus are not within the DoDI 6040.44 defined purview of the Board.  These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

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.
RATING COMPARISON:

Service IPEB – Dated 20030930	VA* - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Foot and Ankle Pain...	5022	0%	Metatarsal Stress Fx, R Foot	5299-5271	0%	20030827	
			Metatarsal Stress Fx, L Foot	5299-5271	0%	20030827	
			Right Ankle Pain	5299-5283	0%	20030827	
			Left Ankle Pain	5299-5283	0%	20030827	
No Additional MEB/PEB Entries	Other x 1	20030827	
Combined:  0%	Combined:  10%	
*Derived from VA Rating Decision (VARD) dated 20040308 (most proximate to date of separation)
**No change to ratings derived from subsequent C&P exams

ANALYSIS SUMMARY:  The PEB combined bilateral foot and ankle pain as the single unfitting and solely rated condition, coded 5022.  Although this approach complies with AR 635.40 (B.24 f.); the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, it must satisfy the requirement that each unbundled condition was unfitting in and of itself.  Not uncommonly, this approach by the PEB reflects its judgment that the constellation of conditions was unfitting; and, that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting.  Thus the Board must exercise 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 and Ankle Pain (subsumes Old Fracture of the Right Lateral Malleolus).  At the narrative summary (NARSUM) examination performed on 7 July 2003, approximately 6 months prior to separation, the CI reported bilateral foot and ankle pain worse with running and marching.  He was not taking any pain medications.  The NARSUM physical examination demonstrated diffuse tenderness to palpation at the base of the right first metatarsal and the ankles.  There were no other abnormalities noted.  On 7 August 2003, the MEB examination documented no active palpable pain of the lower extremities and feet.  At the VA Compensation and Pension (C&P) examination on 27 August 2003, 5 months prior to separation, the CI reported pain in the distal 2/3 of his feet that spread to the toes.  He described constant pain of 6 to 7 on a scale of 1 to 10, which was worse with standing more than 10 minutes or walking more than 200 feet.  He also reported occasional pain in his ankles.  He reported the use of Vicodin or Tramadol as needed for pain.  The examiner noted mild tenderness to palpation over the right and left distal metatarsal bones.  The foot and ankle examinations were otherwise normal.  There was no further pain or limitation of motion with repetitive movements.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the bilateral foot and ankle pain due to stress fractures as a single unfitting condition with a disability rating of 0%.  The VA rated the chronic foot and ankle pain separately, each with a rating of 0% due to the lack of limitation of motion or painful motion during the referenced 27 August 2003 examination.  The Board first considered if the bilateral foot and ankle pain conditions met the Board’s threshold for separate ratings (as elaborated above).  The Board considered that the service treatment records documented multiple treatment notes and modalities for bilateral foot pain.  The bilateral foot pain condition was implicated in the commander’s statement and was profiled.  Members agreed, that the right and left foot pain were each reasonably justified as separately unfitting and that they met VASRD §4.71a and §4.40 (functional impairment), criteria for separate ratings.  Accordingly, member consensus was that the right and left foot should be afforded separate disability ratings.  The Board then considered if the bilateral ankle pain condition met the Board’s threshold for separate ratings.  Although there was radiographic evidence of an old non-displaced fracture of the tip of the lateral malleolus and bilateral ankle stress changes, the ankles were stable with full ROM on all examinations.  The C&P examination most proximate to separation documented neither tenderness nor painful motion of the ankle, even with repetitive use.  Members agreed that the bilateral ankle pain condition was not reasonably justified as separately unfitting and it cannot be recommended for a separate disability rating.  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 disability rating of 20%.

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.  As discussed above, PEB likely reliance on DoDI 1332.39 for rating bilateral foot and ankle conditions were operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right and left foot conditions, the Board unanimously agrees that they were separately unfitting; by a vote of 2:1 recommends a disability rating of 10% for each foot, coded 5299-5271 IAW VASRD §4.71a and §4.40, for a combined rating of 20%.  The single voter for dissent recommended no change to the PEB adjudication and did not elect to submit a minority opinion.  In the matter of the right and left ankle conditions, the Board unanimously agrees that they were not separately unfitting and accordingly cannot recommend separate ratings.  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 Foot Pain Due to Stress Fracture	5299-5271	10%	
Left Foot Pain Due to Stress Fracture	5299-5271	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120624, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX, 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 XXXXXXXXXXXXXXXXXX, AR20130021933 (PD201201340)

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)

CF: 
(  ) DoD PDBR
(  ) DVA