RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01876
BRANCH OF SERVICE:  Army	BOARD DATE:  20140617
SEPARATION DATE:  20040604

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SSG/E-6 (12B/Combat Engineer) medically separated for chronic bilateral foot pain.  The bilateral foot condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  His profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Bilateral foot pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated chronic bilateral foot pain as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI concurred with both the MEB and PEB findings and recommendation, made no appeals and was medically separated.

CI CONTENTION:  “I believe that my rating is inaccurate because I was only rated disability on my feet.  I was told by medical staff at Fort Stewart, GA, that my feet were bad enough to divorce me from the military.  And the rest of my disabilities they didn’t care about after the DOD discharge me.  I would have up to one year to visit VA (Veterans Affairs) for the rest of my disabilities.  I was never given any rating by DOD for my back conditions, which I had nerve damage caused by bulging disc which push against the nerve root w/o  cause severe pain on the outside of my feet.  I also had a h/o (history of gout) which never evaluated PTSD was combat related in Bosnia.  I was never rate by the DOD, diarrhea was never evaluated by DOD.  Varicose veins was never evaluated by DOD. Dermatitis w/folliculitis was not evaluated by DOD.  Middle finger right long I was never evaluated by DOD.”

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 feet condition are addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The requested back, gout, posttraumatic stress disorder, diarrhea, varicose veins, dermatitis with folliculitis and right long middle finger were not identified by the MEB or PEB, and thus are not within the DoDI 6040.44 defined purview 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 Board for Correction of Military Records (BCMR).

RATING COMPARISON:

Service IPEB – Dated 20040507	VA - (1.75 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Foot Pain	5099-5003	10%	Arthralgia of the Left Foot	5009-5003	10%*	20040728	
			Arthralgia of the Right Foot	5009-5003	10%*	20040728	
			Hallux Valgus, Left	5280	0%*	20040728	
			Hallux Valgus, Right	5280	0%*	20040728	
Other x 0 (Not is Scope)	Other x 10		
Rating:  10%	Combined Rating:  60%	
*Effective 20060925 the VA combined these to one condition, 5299-5276 rated 10% (20070405 VARD).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that his disability disposition was unfair and did not include other conditions.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

Bilateral Foot Pain.  Available treatment records document that the CI initially presented with foot pain in December 2003, while performing a training exercise.  At that time, he reported pain in his feet with running, prolonged standing and walking.  The physical examination revealed pain over the metatarsal joints bilaterally; worsened with flexion and extension.  The examiner opined that there was probably degenerative joint disease.

The narrative summary noted that the CI reported (10 on a scale of 1 to 10) severe, constant bilateral foot pain.  The physical examination was significant for tenderness to palpation, left greater than right, foot pain without evidence of swelling.  Radiographic evaluation showed bilateral Achilles spurs and borderline right hallux valgus with left dorsal first metatarsophalangeal joint degenerative changes.  The gait was noted as “somewhat antalgic” with decreased foot range-of-motion (ROM), left greater than right.  There were not assistive devices used for ambulation.  At the VA Compensation and Pension examination performed a month after separation, the CI reported pain with prolonged standing which was worse in the morning and with activity.  The CI was not on any medications for pain.  The physical examination was significant for tenderness to palpation at the metatarsophalangeal joints bilaterally with full ROM bilaterally; no change in function with repetitive use.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic bilateral foot condition as unfitting with probable application of the USAPDA pain policy of slight/constant and a 10% disability rating analogous to degenerative arthritis, VASRD code 5099-5003.  The PEB’s 10% rating was supported by the USAPDA pain policy, but was not consistent with the VASRD §4.71a rating criteria for the foot.  Members agreed that the functional limitations in evidence justified the conclusion that the functional limitations of each foot were integral to the CI’s inability to perform his MOS and, accordingly each foot was separately unfitting and separate ratings are recommended.  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 IAW VASRD §4.59, painful motion and §4.40, functional loss for the chronic bilateral foot pain condition.

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 DoDI 1332.39 for rating the chronic bilateral 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 bilateral foot pain condition, the Board unanimously recommends a disability rating of 10% for each foot, coded 5099-5003 IAW VASRD §4.71a and §4.59, painful motion.  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 Foot Pain	5099-5003	10%	
Right Foot Pain	5099-5003	10%	
COMBINED(w/BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131016, 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, AR20150001209 (PD201301876)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA