Author: JOHN J. D'ORAZIO
Last saved by: WEATHERS, JANICE R SrA USAF AFRBA AFRBA/AFBCMR
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD1300246
BRANCH OF SERVICE:  Army	BOARD DATE:  20130910
SEPARATION DATE:  20050928

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantry) medically separated for a right foot condition.  He experienced an onset of right foot pain in 2004, which was exacerbated during deployment.  His symptoms failed to respond to conservative measures, and the condition 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 right foot condition, characterized as “ruptures posterior tibilan tendon with a result in hind foot reconstruction and posterior tibial tendon augmentation with flexor hallucis longus,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “right hind foot reconstruction following posterior tibial tendon rupture with flexor hallux longus augmentation” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI attached a two page statement to his application which was reviewed by the Board and considered in its recommendations.

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 right foot condition is addressed below; and, 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.  The Board acknowledges the sentiment expressed in the CI's application, that the consequences of his condition merit consideration for a higher disability rating.  It is a fact, however, that the Disability Evaluation System has neither the role nor the authority to compensate members for potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs.

RATING COMPARISON:

Service  IPEB – Dated 20050815 | VA - Based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Right Hind Foot Reconstruction Following Posterior Tibial Tendon Rupture With Flexor Hallux Longus Augmentation | 5311 | 10% | Rupture, Posterior Tibial Tendon s/p Surgical Reconstruction And Tendon Augmentation, Right Lower Extremity | 5299-5271 | 10% | STR
No Additional MEB/PEB Entries | Other x 3 |
Combined:  10% | Combined:  10%
Derived from VA Rating Decision (VARD) dated 20051109 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation.

Right Foot Condition.  The CI sustained an eversion injury to his right ankle while climbing stairs in April 2004.  Persistent medial ankle pain was treated with activity modification, physical therapy (PT) and immobilization.  On 23 November 2004, a calcaneal osteotomy with tendon transfer surgery was performed for correction of posterior tibial tendon dysfunction with partial tendon tear.  The narrative summary on 4 April 2005 (6 months prior to separation) reported that the CI had worn a walking boot since surgery.  The CI still complained of heel pain.  Examination noted the ability to plantar and dorsiflex the foot, but a heel raise could not be performed.  Ankle stiffness was present.  At an orthopedic visit in May 2005, the CI was “very pleased with outcome” of surgery, but was still experiencing pain at the site of the surgical screw.  Surgical removal of hardware was performed on 13 May 2005.  At a PT evaluation on 2 August 2005 (2 months prior to separation) the CI’s chief complaint was right ankle pain, but he was having no pain at the time of the appointment.  Ankle plantar flexion was 40 degrees (normal to 45 degrees) and dorsiflexion was 0 degrees (normal to 20 degrees).  Pain at end range-of-motion was described.  At a clinic visit on 18 October 2005 (3 weeks after separation), the CI reported that he was doing well until he started a new job 3 weeks previously that required constant standing, lifting and carrying.  This caused his foot to hurt.  He denied weakness or instability.  Examination showed no tenderness of the ankle, heel or foot.  Redness and swelling were absent.  “Full ROM” (range of motion) of the ankle was present.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB used the 5311 code (Group XI muscle injuries – ‘foot and leg’), and cited “moderate” as the rationale for its 10% rating.  The VA’s 10% rating under an analogous 5271 code (ankle, limited motion of) was based on a “moderate” degree of motion impairment.  Board members agreed that there was sufficient evidence of painful motion and pain with use, supported by objective examination findings, to justify a minimal compensable rating with application of §4.59 or §4.40.  The Board deliberated the limitation of motion in evidence, and concluded that a rating higher than 10% under the 5271 code is not justified.  It was further agreed that there was no route to a higher rating under the PEB’s ‘Muscle injuries’ pathway.  Finally, while the absence of joint ankylosis or bone malunion renders the 5270, 5272, 5273 and 5283 codes not applicable, the 5284 code (foot injuries, other) was also debated.  The Board concluded that the “moderate” descriptor under this code most accurately depicted the condition, and therefore a rating higher than 10% was not supported.  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 right foot 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 hind foot reconstruction condition and IAW VASRD §4.73, the Board unanimously recommends no change in the PEB adjudication.  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, as follows:

UNFITTING CONDITION | VASRD CODE | RATING
Right Hind Foot Reconstruction | 5311 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130311, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / XXXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20130021808 (PD201300246)

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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

PD1300246