RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01827
BRANCH OF SERVICE:  Army	BOARD DATE:  20140528
SEPARATION DATE:  20040314

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized Reserve SPC/E-4 (21W/Carpentry & Masonry Specialist) medically separated for chronic left foot and ankle pain with distal peroneal neuropathy.  The left foot condition could not be adequately rehabilitated 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).  Chronic left foot pain, distal peroneal nerve neuropathy was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition, upper and lower back pain, meeting retention standards for PEB adjudication.  The Informal PEB adjudicated chronic left foot and ankle pain with diagnosis of distal peroneal neuropathy as unfitting, rated 10% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining condition was determined to be not unfitting and therefore not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Conditions limit daily life-working, home life.  Conditions not all reviewed for unfit.  Conditions causing/resulting in aggravation & new injuries.  Injuries sustained on duty are worsening due to limitations also causing additional complications due to trying to work around prior injuries.  Not all injuries, medical conditions were reviewed and evaluated.  Med board was quick to discharge.  I have civilian doctors outside of VA also.”  

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 left foot and ankle pain with distal peroneal neuropathy is addressed below.  The upper and lower back condition, which was determined to be not unfitting by the PEB, is likewise addressed below.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; 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 (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 the time of separation.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040116	VA - (1.5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Foot and Ankle Pain w/ Distal Peroneal Neuropathy	8521-5099-5003	10%	Left Peroneal Nerve Numbness, Residual of Left 5th Metatarsal Fracture	8523	10%	20040428	
Upper and Lower Back Pain	Not Unfitting	Central Disk Protrusion L5-S1, Lumbosacral Spine	5243	10%	20040428	
No Additional MEB/PEB Entries	Other x 2	20040428	
Rating:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20040619 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Left Foot and Ankle Pain w/Distal Peroneal Neuropathy.  The history of multiple foot injuries as noted above was specifically noted by the PEB and some injuries were considered to have existed prior to service (EPTS).  However, the PEB also determined there was permanent service aggravation and no EPTS deduction in rating was applied.  The Board therefore focused on the CI’s disability rating at the time of separation.  The narrative summary (NARSUM) dated 18 December 2003 with addendum dated 15 December 2003 (approximately 3 months prior to separation) stated the CI had continued severe pain in the foot/ankle and still required medication for pain.  Her left lower extremity evaluations had included numerous radiographic studies with a CT scan in September 2003 being read as normal.  Electrophysiological studies (NCV and EMG) confirmed a distal peroneal nerve neuropathy.  Her exam on 15 September 2003 noted range-of-motion (ROM) of the ankle as dorsiflexion 5 degrees (normal 20 degrees) and plantar flexion 15 degrees (normal 45 degrees), while exam on 18 September 2003 documented “full range of motion.”  Both exams documented paresthesia that aligned with the distribution of the left superficial peroneal nerve (numb feeling on lateral foot area) including abnormal monofilament testing.  The neurological exam was otherwise normal specifically including normal strength and reflexes.

At the VA Compensation and Pension exam performed 1.5 months after separation, the CI reported pain up to 8/10 in her left foot and ankle since injury in 2001.  Pain was described as constant and sharp with weakness and numbness, and she was taking pain and nerve-type (gabapentin) medications.  Exam documented a limp with tenderness of the ankle/foot and decreased sensation on the lateral foot.  There was no atrophy.  ROM was dorsiflexion of 5 degrees (normal 20 degrees) and normal plantar flexion of 45 degrees, with pain and weakness on repetition.  There was no abnormal radiographic imagining noted.  The examiner opined that the sensory loss was due to a peroneal nerve injury rather than due to a radiculopathy (from the back condition) and indicted there was “moderate functional impairment of the left foot and the left ankle.”

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA coded primarily under §4.124a - Schedule of ratings - neurological conditions.  The PEB rated the condition at 10% coded 8521-5099-5003 stating “rated for pain and neuropathy.”  Code 8521 is for incomplete mild paralysis of the external popliteal nerve (common peroneal).  Code 5099-5003 is analogous to “Arthritis, degenerative (hypertrophic or osteoarthritis).”  However, this analogous coding is also IAW the USAPDA pain policy in effect at the time and given the PEB “rated for pain …” statement is likely IAW the pain policy.  The VA also rated the condition at 10%, but coded it as 8523 anterior tibial nerve (deep peroneal) at incomplete moderate paralysis.  The Board noted that the PEB’s mild level of a more central nerve (common peroneal) that includes more functions and area, was equivalent to the VA’s moderate level of a more distal portion (deep peroneal) of that same nerve.  Although ideal coding under VASRD §4.124a at the time of separation would have used a neuritis (86xx) or neuralgia (87xx) code at the same nerve levels (IAW VASRD §4.123 or §4.124) rather than incomplete paralysis (85xx) coding, there was no difference in rating level with that alternate coding.  Either coding under §4.124a encompass the pain component from the nerve.  The Board also considered that alternate coding under 5284 (Foot injuries, other) would encompass all of the foot/ankle disability, but would also not be greater than the 10% (moderate) rating level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic left foot and ankle pain with diagnosed distal peroneal neuropathy condition.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

Contended PEB Conditions (Upper and Lower Back Pain).  The Board’s main charge is to assess the fairness of the PEB’s determination that the “upper and lower back pain” condition was not unfitting.  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.  No back condition was implicated in the commander’s statement and the upper and lower back pain condition was not judged to fail retention standards.  However, the Board considered that the commander’s statement dated 23 December 2003 referenced an L2 profile while the profile dated 17 December 2003 listed an L profile of “P3” and listed “back pain / disc protrusion” in addition to the left peroneal nerve (foot/ankle) condition.  The specific profile restrictions attributable to the CI’s unfitting foot/ankle condition were not clearly separable from any restrictions potentially attributable to the CI’s back pain condition.  The medication treatment for the two conditions may also have overlapped.  The record did indicate a transcutaneous electrical nerve stimulation unit was used for therapy and the CI had emergency department visits in November and December 2003 specific to the back condition, with use of narcotic pain medication noted.  The NARSUM and MEB indicated the back condition met retention standards.  The Board majority determined that there was insufficient performance based evidence from the record that the “upper and lower back pain” condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board majority concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the back pain 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the chronic left foot and ankle pain was likely operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic left foot and ankle pain with diagnosed distal peroneal neuropathy condition and IAW VASRD §4.124a and §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended upper and lower back pain condition, the Board majority agrees that it cannot recommend it for additional disability rating.  The single voter of dissent, elected not to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130914, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150001031 (PD201301827)

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