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AF | PDBR | CY2012 | PD 2012 01902
Original file (PD 2012 01902.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2012-01902
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20140807
SEPARATION DATE: 20020315


SUMMARY OF CASE: T he available evidence of record reflects that this covered individual (CI) was an active duty LCpl /E- 3 ( 6672 / Aviation Supply Clerk) medically separated for a right foot condition. The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was placed on limited duty and referred for a Medical Evaluation Board (MEB). The condition, characterized as “ nonunion stress fracture, third metatarsal ” and “ pes planus, bilateral , ” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The I nformal PEB adjudicated “ stress fracture, third metatarsal ” as unfitting, rated 10 %, with likely application of the VA Schedule for Rating Disabilities (VASRD) . The remaining condition was determined to be not unfitting Category I (condition that contribute d to the unfitting condition). The CI made no appeal s and was medically separated.


CI CONTENTION: “ a) Service connection for status post third metatars al stress fracture only rated ( 10%); b )Service - connection for left olecranon bursitis was never rated by the Physical Evaluation Board, the VA rated this condition at 10%; c) Service - connection for lumbar strain was never rated by the Physical Evaluation Board, the VA rated this condition at 20%: d) Pay Grade E3 at the time of separation, Physical Evaluation Board pay grade rating for E 1; e) VA current service connected disability rating 40%. ”


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 is addressed below. The contended left olecranon bursitis and lumbar strain conditions were not identified by the PEB and thus are not within the DoDI 6040.44 defined purview of the Board. 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 Naval Records (BCNR).

While the Disability Evaluation System considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The Department of Veteran Affairs, however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board acknowledges the CI’s contention of pay grade rating. The Board does not have the jurisdiction to offer remedy in reference to Service decisions of this nature. That authority resides with the BCNR.



 RATING COMPARISON :

Service IPEB – Dated 20020128
 VA - (1.5 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Stress Fracture , Third Metatarsal 5284 10% Status Post Right Third Metatarsal Fracture and Pes Planus Right Foot 5284 10% 20020131
Pes Planus , Bilateral Cat II
Pes Planus, Left Foot 0% 20020131
Other x 0 (Not in Scope)
 Other x 2 20020131
Rated: 10%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 200 20626 .


ANALYSIS SUMMARY:

Right Foot Condition. On 1 March 2001, 3 months after entering active duty, the CI’s right foot was injured when a metal ladder was dropped on the top of his foot. Initial X-rays were negative for obvious fracture. The CI was treated with rest and medications. He presented for care due to persisting pain on 13 April 2001 and repeat X-rays at that time demonstrated the bone changes consistent with ongoing healing process of a stress fracture of the third metatarsal bone of the right foot. He was treated with splinting, non-weight bearing, medications and duty restrictions. At the time of a podiatry follow-up evaluation on 30 July 2001, repeat X-rays demonstrated the stress fracture was healed with no displacement or malalignment. However there was still pain with use and tenderness at the fracture site. Podiatry follow-up on 22 August 2001 recorded continued foot pain interfering with military duties and the CI was referred for an MEB. The MEB narrative summary (NARSUM) performed on 31 August 2001 recorded an antalgic gait, tenderness of the foot and pain with motion. X-rays of the feet performed on 10 December 2001, were normal. A bone scan performed on 11 December 2001, demonstrated slight uptake at the healed fracture site. A podiatry consultation on 10 January 2002, prior to the PEB, noted the right foot metatarsal stress fracture was healed. On examination, there was no swelling, and foot range-of-motion and strength were normal. There was however pain with extreme of motion of the third toe joint. Gait was normal. The podiatrist concluded the stress fracture was resolved. A physical therapy examination performed on 12 February 2002, recorded a non-antalgic (normal) gait.

The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and VA rated the right foot pain condition 10% under the VASRD diagnostic code for other foot injuries (5284), moderate. The VA rating decision cited the results of a pre-separation VA Compensation and Pension examination performed on 31 January 2002 that was not present in the available record. All Board members agreed the normal podiatry examination in January 2002 did not support the next higher rating of 20% for moderately severe. The Board also considered whether a higher rating was supported under the VASRD diagnostic code 5283, malunion or non-union of metatarsal bones. However the stress fracture was completely healed with normal alignment and there was no non-union or malunion to support a minimum rating under this code. Although the CI had moderate pes planus (flat foot) at service entry, the Board also considered the rating for the right foot under the code for acquired flat foot (5276). No benefit resulted under this code as the condition was not severe. 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 stress fracture, right third metatarsal 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. In the matter of the stress fracture, right third metatarsal 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 20121107, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




XXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 12 Feb 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC


                                                      XXXXXXXXXXXXXX
                                            Assistant General Counsel
                           (Manpower & Reserve Affairs)

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