RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02297
BRANCH OF SERVICE:  Army  	BOARD DATE:  20150805
SEPARATION DATE:  20060209 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Automated Logistical Specialist) medically separated for a right foot condition which could not be adequately rehabilitated 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).  The condition “right healed metatarsal stress fracture with metatarsalgia” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions for PEB adjudication, all judged to be meet retention standards: “lower back myofascial pain,” “Achilles tendonitis,” “right second digit claw toe,” “hypertension,” and “hearing loss.”  The Informal PEB adjudicated “right metatarsalgia with healed stress fracture” as unfitting, rated 10%, with likely 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:  “Right foot was noted as metatarsal stress fracture with metatarsalgia which is incorrect; it was complete break causing me to have reconstructive surgery with implants.”  The application continued with reference to the lumbar, Achilles tendonitis, and hypertension conditions adjudicated as not unfitting by the PEB; but, did not reference the claw toe or hearing loss conditions. 

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 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 20051216	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Metatarsalgia ...	5279	10%	Right Metatarsalgia (Subsuming Claw Toe)	5284	0%	STR	
Lower Back Myofascial Pain	Not Unfitting	Back Condition	5237	NSC	STR	
Achilles Tendonitis	Not Unfitting	Achilles Tendonitis 	5299-5257	NSC	STR	
Hypertension	Not Unfitting	Hypertension	7101	0%	STR	
Other x 2 (Not In Scope)	Other x 3 (Additional NSC [Not Service Connected])	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20060630 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:    

Right Foot/Ankle.  The STR corroborated the history in the narrative summary (NARSUM) of an onset of right foot pain in 2001 during basic training.  At that time X-rays were normal, but the CI experienced pain again a year later and an X-ray diagnosed a fracture of the second metatarsal.  This precipitated surgical intervention (internal fixation) in April 2002.  The pain recurred and he underwent a surgical revision in March of 2003 (nearly 3 years prior to separation; no further surgery).  There are numerous STR treatment notes directed at ongoing complaints of right foot and ankle pain, and post-surgical X-rays demonstrated normal alignment with hardware placement.  There is STR documentation of a right ankle sprain injury in September 2005 (5 months prior to separation) treated temporarily on crutches, which was concurrent with referral for an MEB.  There is STR documentation of grossly normal ankle range-of-motion (ROM), joint stability, and normal strength (5/5 dorsiflexion and plantar flexion) both before and after the sprain injury noted above.  There is an STR entry noting a non-antalgic gait in March 2005 (11 months prior to separation), but entries after the sprain record an antalgic gait.  There is no STR evidence for more significant range-of-motion (ROM) limitation, joint instability, malalignment, or periods of incapacitation (after surgical recovery).

The NARSUM was conducted 5 October 2005 (4 months prior to separation), and documented continued pain characterized as “minimal and constant” rendering the CI “unable to run ... walk or stand for long periods.”  The NARSUM physical examination recorded “antalgic gait on the right,” adding that foot and toe motion were normal during ambulation.  The only direct finding noted was tenderness over the plantar right foot and dorsal surgical scar.  The NARSUM measured ROM was dorsiflexion to 5 degrees (normal 20) and plantar flexion to 50 degrees (normal 45), recording “full subtalar and midfoot motion.”  The CI failed to report for a scheduled VA examination, and there is no probative post-separation evidence.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating was under code 5279 (metatarsalgia) which is a reasonable clinical fit with the condition and which offers a 10% rating option.  The VA’s 0% rating (based on Service evidence) was under code 5284 (foot injuries, other), and the decision stated that the severity did not achieve the minimum compensable 10% rating for “moderate” disability under that code.  Code 5284 also offers ratings of 20% for “moderately severe” and 30% for “severe” disability.  Members considered whether a rating higher than the PEB’s 10% could be justified under 5284, but it was agreed that the disability in evidence could not be reasonably justified as “moderately severe” or greater.  The only other code available under VASRD §4.71a which can be considered for a higher rating in this case is 5271 (limitation of ankle motion) which offers a 20% maximum rating for “marked” limitation.  The NARSUM measurement of dorsiflexion to 25% of normal is an argument in favor of that recommendation; but, this severity of ROM limitation was not corroborated by the STR (with grossly normal observations in close temporal proximity to the NARSUM); and, it must be considered that residual ROM limitation from the sprain injury (within a month of the NARSUM) was a likely possibility and is not a reasonable basis for permanent rating.  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 of the right foot/ankle condition.

Contended PEB Conditions (Lumbar, Achilles Tendonitis, Hypertension).  The NARSUM documents “a back injury [non-surgical] in September 2003 when [the CI] fell off a vehicle;” although, there are STR entries documenting a complaint of back pain since 2000.  Other than incidental mention in other treatment notes, there is no STR evidence that the lumbar condition was an active clinical concern during the MEB (or earlier).   There were no temporary profiles for the back condition, but it was added to the permanent L3 profile for the foot condition in October 2005 (4 months prior to separation).  

The NARSUM documents a partial tear of the right Achilles tendon in January 2004, treated non-surgically in a splint, and an onset “within the last few months” of left Achilles pain.  The STR documents Achilles tendon complaints (dominantly the right) commencing during that period, but no evidence that it was acute issue.  A provider note from April 2005 (10 months prior to separation) states, “Achilles symptoms are self-manageable per patient, but primary complaint is surgical site foot pain.”  The Achilles condition was never profiled. 

The CI was diagnosed with hypertension in January 2003 (over 3 years prior to separation) and treated with medication.  There is no STR evidence that it was ever unstable or symptomatic.  

The commander’s performance statement elaborated administrative, not medical, reasons for undesirability of further service; and, in fact documented “his conditions do not hinder him from performing his scope of duties.”  

The Board directed attention to its recommendations based on the above evidence; and, its main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they were not unfitting.  The Board’s threshold for countering Service 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.  All members agreed that there was no performance based evidence suggesting that any of the above conditions, in and of themselves, significantly interfered with duty performance.  Furthermore, all of the contended conditions were subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  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 any of these condition; thus none of them can be recommended for additional Service disability rating. 

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 right foot condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended lumbar myofascial, Achilles tendonitis, and chronic hypertension 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, 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 20131024, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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, AR20150013292 (PD2013002297)

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