RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00728
BRANCH OF SERVICE:  Army	BOARD DATE:  20150205
SEPARATION DATE:  20031218

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Field Artillery Surveyor) medically separated for a right foot condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Painful right 5th metatarsal, status post osteotomy” 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 pain, right foot, status post fifth metatarsal osteotomy” unfitting, rated 10% citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “To ensure accuracy and fairness, also to update records.”

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 Veterans Affairs Schedule for Rating Disabilities (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:

Service IPEB – Dated 20031124	VA* - (1 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Foot, Status Post Fifth Metatarsal Osteotomy	5099-5003	10%	Residuals of Hammertoe Repair and Osteotomy, with Open Reduction/Internal Fixation and Scars, Right Fifth Toe	5299-5280	10%*	20031216	
Other x 0 (Not In Scope)	Other x 1	
Combined:  10%	Combined:  20%	
*Derived from VA Rating Decision (VARD) dated 20040708 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Chronic Pain, Right Foot, Status Post Fifth Metatarsal Osteotomy.  The CI had a surgical repair of the right 5th hammertoe secondary to a bunionette (bunion on the outside of the foot near little toe) in September 2002.  Post-operatively, the CI continued to have exquisite pain to the surgical site despite physical therapy and rehabilitation.  A surgical revision with metatarsal osteotomy was performed in January 2003.  While still under profiled restrictions, the CI deployed in March 2003 and was returned home in May 2003 due to his post-surgical right foot condition.  Specifically, the deployed orthopedic surgeon authored, “X-rays reveal that the bones in [the CI’s] right foot have not healed properly (non-union).”  The CI resumed podiatric rehabilitation, treated with external support and medications, and was referred for MEB.  Interim electro-diagnostic studies were normal.

The MEB narrative summary examination on 2 October 2003; 10 weeks prior to separation listed the CI’s chief complaint as right 5th toe pain without further endorsement of subjective symptoms.  The physical examination (PE) revealed painful motion of the right foot with tenderness and slight decrease in sensation about the little toe joint.  X-rays performed in October 2003 did not note any arthritic or degenerative changes.  The commanders’ statement of 11 July 2003 included, “[The CI] cannot physically exert himself in a manner that this MOS demands.”  His final profile dated 12 August 2003 listed status post right foot surgery as the sole diagnosis.

The VA Compensation & Pension examination on 4 April 2007 14 weeks after separation the CI endorsed severe right foot pain with walking and standing with flare-ups causing 9/10 on a pain scale.  The PE was detailed and revealed tenderness about the side of the 5th toe and painful motion of the metatarsophalangeal [surgical site] joint.  There was no foot edema, muscle spasm, or muscle atrophy present.  He had an altered gait due to the wearing of an external support walker.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition at 10% under the analogous VASRD code 5099-5003 (degenerative arthritis).  Board members first agreed that significant evidence of painful motion was present near the time of service separation to justify the PEB’s 10% IAW §4.59.  Board members then considered various coding options which could possibly yield a higher rating under analogous diagnostic criteria.  Members considered codes of 5282 (hammer toe) the CI’s original diagnosis, 5283 (metatarsal; non-union) as described by orthopedics, or 5284 (unilateral; other foot injuries), but none were supported over the PEB’s current 10% and therefore, provided no additional benefit to the CI.  Code 5279 (metatarsalgia) was also considered, but its single rating is 10% as well.  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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the right foot was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right foot condition and IAW VASRD §4.71a, 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131125, 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, AR20150010577 (PD201400728)

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