RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01464
BRANCH OF SERVICE:  Army	BOARD DATE:  20150219
Separation Date:  20050126

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Military Police) medically separated for left foot pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic left foot pain and neuropathy secondary to shrapnel injury” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic pain, left foot” as unfitting, rated 10%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  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.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

IPEB – Dated 20041022	VA - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Foot	5099-5003	10%	Left Lateral Ankle Shrapnel Wound with Ankle Fracture	5271	10%	20041230	
			Post Traumatic Sural Neuropathy of the Left Foot	8521	10%	20041230	
Other x 0 (Not in Scope)	Other x 3	
RATING:  10%	RATING:  40%	
Derived from VA Rating Decision (VARD) dated 20050311 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  

Chronic Pain, Left Foot Condition.  The CI sustained shrapnel wounds to the left foot and ankle while in Iraq in October 2003.  He was transferred to the regional medical center for treatment of the fragment embedded in the left foot calcaneus.  The General Surgeon noted some left ankle pain and swelling.  An X-ray performed confirmed the metallic foreign body within the calcaneus.  The CI was then returned state-side for further treatment.  The General Surgeon documented physical exam findings of the left ankle with full range-of-motion (ROM), pain with weight bearing and inversion.  However, there was normal strength and no neuro deficit.  The Family Practitioner noted left ankle/foot antalgic gait with full ROM.  The left foot X-ray showed a linear metallic calcaneal foreign body.  The CI was sent to physical therapy where slowed gait, tenderness anteriorly and posteriorly with limited ankle ROM was noted.  The Orthopedist noted that since the injury, the CI reported numbness in the proximal lateral heel.  There were physical exam findings of decreased sensation in the sural nerve distribution with normal strength.  The Neurologist noted that the CI reported tingling and numbness in the lateral aspect of the foot with diminished pin prick in the lateral margin of the left foot below the lateral malleolus.  Noted also was normal gait, normal strength and reflexes.  The Neurologist diagnosed left post-traumatic sural neuropathy and opined that the CI would likely continue to have residual numbness in the lateral margin of the left foot.  The left foot X-ray showed degenerative changes in the left ankle.  The Family Practitioner noted left ankle pain and weakness with physical exam findings of tenderness to palpation and decreased sensation.  The MEB narrative summary (NARSUM) exam, performed approximately 5 months prior to separation, documented that the CI had significant problems with constant left foot pain and discomfort rated at 3/10 with occasional bursts of 5-6/10 pain, that would last from a few minutes to 10 minutes.  He was unable to run and could not walk for a long distance without aggravating the pain.  The MEB NARSUM physical exam findings are summarized in the chart below.

A month prior to separation, the VA Compensation and Pension (C&P) exam documented left ankle pain rated-3/10 with weakness and stiffness.  The reported flares of pain at least once weekly with pain increased to 5-6/10 and lasted for 3-4 hours.  The CI had functional impairments of pain with extended walking or standing for long periods of time.  A left foot X-ray showed a broken screw in the mid calcaneus; focal sclerosis in the calcaneus and talus consistent with an old healed fracture; and accessory ossicles adjacent to the medial and lateral malleoli.  

The 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:

Left Ankle ROM (Degrees)	MEB ~5 Mos. Pre-Sep	VA C&P 1 Mo. Pre-Sep	
Dorsiflexion (20 Normal)	Full ROM Ankle & Feet	5	
Plantar Flexion (45)		45	
Inversion 35-45		30	
Eversion 15-25		20	
Comments	Pos. limp & tenderness to palpation; Decreased sensation left heel	Pos. limp, tenderness to palpation, & painful motion; No Deluca criteria; Normal strength & reflexes; No mention of decreased sensation	
§4.71a Rating	10% (PEB 10%)	20% (VA 10%)	
§4.124 Rating 8521	10% (PEB Not unfitting)	10% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic pain left foot condition as 5099 analogous to 5003 arthritis, degenerative (hypertrophic or osteoarthritis) and rated at 10% with application of the USAPDA pain policy.  The VA coded the left lateral ankle shrapnel wound with ankle fracture condition as 5271 (ankle), limited motion of and rated at 10%.  All exams proximate to separation contained adequate evidence of painful motion.  VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion” and VASRD §4.59 (painful motion) provides an alternate justification for a 10% rating.  The left foot condition could not be reasonably rated higher than 10% using any exam proximate to separation or any alternate rating schema.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic pain left foot condition.

The neuropathy secondary to shrapnel injury condition, which was forwarded by the MEB, was not specifically adjudicated per the PEB’s DA Form 199; but, the Board judged that this was likely an erroneous omission and should be assumed to constitute a de facto PEB determination that the condition was not unfitting.  Additionally, the Board considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated neuropathy at separation.  Board precedence requires a functional impairment linked to fitness to support a recommendation for an addition of a peripheral nerve.  The sensory component in this case has no functional implications, and no motor weakness was in evidence.  There is no evidence of a separately ratable functional impairment (with fitness implications) from the residual neuropathy; and, the Board cannot support a recommendation for an additional disability rating on this basis.

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 reliance on the USAPDA pain policy for rating the chronic left foot pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic left foot pain condition and IAW VASRD §4.71a, the Board by a majority vote recommends no change in the PEB adjudication.  In the matter of the left foot neuropathy secondary to shrapnel injury condition, 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

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
SAMR-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 XXXXXXXXXXXXXXX, AR20150009917 (PD201301464)

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 and hereby deny the individual’s application.  This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		     XXXXXXXXXXXXXXX	
			    Deputy Assistant Secretary of the Army
			          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA