RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02714
BRANCH OF SERVICE:  Army	BOARD DATE:  20141204
SEPARATION DATE:  20061228

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (15F/Aircraft Electrician) medically separated for right foot pain.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right foot condition, characterized as “Chronic right foot pain, s/p multiple surgeries to repair fractured cuboid bone, complicated by postoperative wound infections,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (mild hypercholesterolemia) for PEB adjudication.  The Informal PEB adjudicated the right foot pain as unfitting, rated 10% with likely application of the VA 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:  “All medical issues found on my PEB/MEB.”

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 foot condition as well as the contended mild hypercholesterolemia is addressed below.  The Board acknowledges the CI’s contention for ratings of his mild hypercholesterolemia condition which was determined to be not unfitting by the PEB; and, emphasizes that the disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.  No additional conditions are 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.

RATING COMPARISON:

Service IPEB – Dated 20060926 | VA - 2 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Right Foot Pain | 5271 | 10% | Residuals of Right Foot Injury, Status Post Surgery with Scar | 5284 | 20% | 20061023
Mild Hypercholesterolemia | Not Unfitting | No VA Entry
Other x 0 (Not in Scope) | Other x 5
Rating:  10% | Combined:  60%
Derived from VA Rating Decision (VARD) dated 20061229.

ANALYSIS SUMMARY:  

Right Foot Condition.  The narrative summary (NARSUM) notes the CI sustained a fracture-dislocation of a right foot bone during a parachute landing in October2004.  This fracture was operatively reduced and internally fixed with surgical screws.  Post-operatively, a surgical infection occurred at the operative site.  This required the drainage of an abscess (pus collection) in December 2004.  Following this, an infection of the foot bone (osteomyelitis) developed.  This required drainage of a further abscess, removal of the infected screws and placement of special “antibiotic” beads in the wound site in September 2005.  This successfully controlled the infection and the CI underwent a second fixation procedure with screws of the fracture site in November2005.  This procedure healed with no further infection, but with the development of a painful foot condition.  Routine X-rays of the foot on 14 March 2006, revealed no infection, no screw difficulties, good healing of the fracture, but development of mild osteopenia of the foot bone (loss of bone substance).  On a physical therapy (PT) examination on 30 June 2006, active range-of-motion (ROM) of the ankle was dorsiflexion (DF: flexion toward the sky) of 0 degrees and plantar flexion (PF: flexion toward the ground) of 50 degrees both limited by pain (normal: DF 20 degrees; PF 45 degrees).  Inversion and eversion motion of the ankle were decreased compared to the left ankle.

At the MEB/NARSUM evaluation on 12 July 2006, 5 months prior to separation, the CI had an antalgic gait and required a cane for ambulation.  The MEB physical exam, referencing the DD Form 2808 dated 26 June 2006, reported weight-bearing to be “very painful.”  The CI was unable to raise his heels due to pain.  Exam of the right foot revealed “good” DF and PF of the foot with pain on DF, weight-bearing, palpation of the mid-foot and inversion/eversion.  No swelling, or signs of infection were present and the foot was neurologically intact. The remainder of the exam was normal.  The, 2 months prior to separation, was not available in the record for Board review as noted above.  Data from the VA C&P exam performed on 23 October 2006 was quoted by the VARD, in its rating determination of 29 December 2006.  Data quoted were: 1) noticeable limp right foot; 2) unable to stand on right foot with left foot elevated; 3) 80% loss of inversion and inversion with associated pain, weakness and loss of co-ordination; 4) 20% loss of power in right foot; 5) well healed scar and 6) no tenderness on palpation of bottom of foot.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the ankle condition 10% code 5271 (ankle limitation of motion, moderate).  The next higher rating of 20% under this code requires the limitation of motion to be “marked.”  The VA rated the ankle condition 20% code 5284 (foot injury/moderately severe).  The next higher rating under this code, 30%, requires the foot condition to be “severe.”  The Board agreed that the record referenced above supported the ankle condition to rise to the level of 10% for painful motion IAW VASRD §4.40 and §4.59.  The Board considered a rating under code 7271.  The Board noted the differences in the ROM evaluations on the PT exam of 30 June 2006 and the NARSUM of 26 June 2006.  The Board gave higher probative value to the PT exam as it was quantative by goniometer.  The Board noted the reported 80% loss of inversion and eversion of the foot quoted on the VASRD.  The Board agreed that the limitation of motion based on these records was “moderate” supporting a 20% rating under this code.  No higher rating is achievable under this code.  The Board considered a rating under code 5284.  The Board unanimously agreed the record in evidence supported the foot condition to be “moderately severe” for a 20% rating, given painful motion, decreases in ROM and evidence of mild osteopenia.  The Board agreed the condition was not “severe,” required for a 30% rating, as the gait did not require crutches, osteopenia was mild, fracture sites were healed and there was no evidence of recurrent infection at separation.  The Board found no evidence to support a rating under neurologic or muscle injury IAW §4.124 or §4.73.  The Board considered an additional rating under painful scars, IAW §4.118, but was unable to do so as the scar was well-healed, non-tender, not unstable, and not unfitting per se.  The Board found no other codes for consideration or pathways to a higher than 20% rating for the ankle condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right foot condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that mild hypercholesterolemia (elevated blood cholesterol) 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.  The CI had a borderline high elevation of his cholesterol on a blood testing for which no treatment was required.  The Board found no clinical sequellae of this blood test finding in the service treatment record.  The condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that this significantly interfered with satisfactory duty performance.  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 this contended 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.  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, the Board unanimously recommends a disability rating of 20%, coded 5284 IAW VASRD §4.71a.  In the matter of the contended hyper-cholesterol condition, the Board unanimously recommends no change from the PEB determination as not unfitting and agrees that it cannot recommend it for additional disability rating.  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 | 5284 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131217, 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, AR20150001224 (PD201302714)

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

PD-2013-02714