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AF | PDBR | CY2012 | PD2012 01894
Original file (PD2012 01894.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx         CASE: PD1201894
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130530
SEPARATION DATE: 20050801


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Cpl /E- 4 ( 5811/Military Police ) medically separated for a bilateral f oo t condition . She experienced an onset of bilateral foot pain in 200 2 , and was subsequently diagnosed with bilateral metatarsalgia , pes planus , and hammertoe deformities . Her symptoms failed to respond to a protracted trial conservative measures and surgical intervention , and cou ld not be adequately rehabilitated t o meet the physical requirements of her M ilitary Occupational Specialty or satisfy physical fitness standards. She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). The bilateral foot condition s were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded three other conditions (see rating chart below) for PEB adjudication. The PEB , utilizing nomenclature from the narrative summary (NARSUM), adjudicated “ bilateral metatarsalgia and callus formation status post bilateral arthroplasty and tenotomy of lateral toes ” as unfitting; rated 10 % , with presumptive application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) . A second NARSUM condition, “bilateral pes planus with claw toe deformity status post resection arthroplasty of fourth and fifth proximal phalanx bilateral and extensor,” w as determined to be C ategory II : c onditions that contribute to the unfitting condition. The remaining conditions were determined to be Category III: conditions that are not separately unfitting and do not contribute to the unfitting condition. T he CI made no appeals, and was medically separated .


CI CONTENTION: “Medical Board combined Right and Left conditions as one and left off pes planus from diagnostic evaluation. Issues Should have been rated separately then combined along with bilateral factor.”


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 bilateral foot condition (metatarsalgia and associated pes planus) is addressed below. The thoracolumbar spine, bilateral femoral neck stress fracture, and bilateral knee conditions, identified as Category III by the PEB, were not requested for review; and thus are not within the defined scope. Those, and any conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Naval Records.


RATING COMPARISON :

Service IPEB – Dated 20050602
 VA (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Metatarsalgia/Calluses w/ Surgical Residuals 5279 10% S/P Arthroplasty ... R Foot 5299-5284 10% 20050607
Surgical Scars , R Foot 5285-7802 0% 20050607
S/P Arthroplasty ... L Foot 5299-5284 10% 20050607
Surgical Scars, L Foot 5284-7802 0% 20050607
Bilateral Pes Planus/ Claw Toe Deformity w/ Surgical Residuals Category II Bilateral Pes Planus 5276 10% 20050607
Thoracolumbar Pain Category III Thoracolumbar Strain 5237 20% 20050607
Patellofemoral Syndrome , Bilateral Knees Category III Right Knee Strain 5260 10% 20050607
Left Knee Strain 5260 10% 20050607
Bilateral Femoral Neck Stress Fractures, Healed Category III Left Hip Strain 5252 10% 20050607
Right Hip Strain 5252 10% 20050607
No Additional MEB/PEB Entries
 Other x 15 20050607
Combined: 10%
 Combined: 90%
Derived from VA Rating Decision (VA RD ) dated 200 50830 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Bilateral Foot Condition: The Service treatment record (STR) notes a July 2001 visit for a year history of bilateral foot pain, with findings of calluses over the metatarsal heads. This was managed conservatively, and the first podiatric consultant in December 2001 ascribed the calluses to moderate pronation of the feet secondary to coxa vara (abnormal hip angle) and genu valga (inward knee bowing). The CI was treated with orthotics, but suffered continued pain; and, in November 2002 she sustained a minor fracture of her left ankle (fibula). The fracture healed with casting, but the STR notes repeated visits for bilateral foot pain with diagnoses of metatarsalgia and plantar fasciitis. In November 2002 she experienced another left ankle fracture (talar chip) associated with Achilles tendon strain. During the course of physical therapy for that injury, she began to complain of numbness and pain with exercises; and podiatric notes in March and May of 2004 provided diagnoses of bilateral Morton’s neuromas, hammertoes, and pes planus (flat feet). Failing continued conservative measures, the CI underwent separate arthroplasties (toe joint resections) and tenotomies (tendon release) to correct the hammertoes (August and December 2004). The surgeries were unsuccessful in relieving the metatarsalgia pain, and she experienced recurrent calluses and persistent post-operative pain in the toes. By April 2005, the CI had failed to respond adequately to conservative measures; had exhausted trials of LIMDU; and was referred for a MEB. Bilateral foot X-rays (Service and VA) noted typical postoperative changes with correction of hammertoes, healed fractures on the left, pes planus, normal alignment, and no other significant abnormalities. Numerous STR entries documented normal gait and normal neurovascular findings. The NARSUM documented functional limitations as, “She remains unable to walk more than seven to twelve minutes without the onset of foot symptoms and her ability to walk carrying a weight or on uneven ground is more severely limited.” The physical exam was limited to, “Her ankle and foot motion are good, but she has visible scars at the surgical sites on the lateral three toes bilaterally.” At the VA Compensation and Pension (C&P) evaluation, 2 months prior to separation, the examiner documented, “While standing and walking she has pain, weakness, and stiffness. ... The functional impairment is weakness, stiffness, numbness of toes, and sharp shooting pains up legs.” The VA physical examination was much more detailed and probative to rating than the NARSUM exam. The examiner noted a normal gait, and specified the absence of painful motion, atrophy, weakness, or positive neurovascular findings. The only positive finding was moderate plantar tenderness bilaterally. Detailed scar descriptions were provided. The VA examiner also provided a detailed list of negative findings to his exam: no flatfeet or deformity, normal Achilles alignment, no pes cavus, no tenderness of the metatarsal heads, no hammertoe deformities, no evidence of Morton’s neuroma, no hallux valgus, and no hallux rigidus. The VA examiner concluded, “The claimant does not have any limitation with standing or walking. She does not require any type of support with her shoes.” Ankle range-of-motion (ROM) measurements were dorsiflexion 15 degrees (normal 20 degrees) and plantar flexion 20 degrees (normal 45 degrees) on the right, with normal values recorded for the left.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 10% bilateral rating is consistent with the chosen code, 5279 (metatarsalgia), which solely confers a 10% rating for unilateral or bilateral conditions. The VA’s route to separate 10% ratings was under code 5284 (foot injuries, other) which confers a 10% rating for ‘moderate’, 20% for ‘moderately severe’, and 30% for ‘severe’ disability. It was concluded that separate disability ratings could be entertained, since members agreed that each foot could be reasonably justified as separately unfitting. With the multiplicity of diagnoses and surgical residuals in evidence, there are several VASRD §4.71a foot codes which can be considered. All members agreed, however, that separate ratings (unilateral or bilateral) under separate codes was not compliant with VASRD §4.14 (avoidance of pyramiding), which specifies that “the evaluation of the same manifestation under different diagnoses are to be avoided.” Specifically a separate compensable rating for pes planus, as contended by the CI and conferred by the VA, was considered. Even if conceded as compliant with §4.14 (itself a tenuous position), a separate disability rating for pes planus would have to be justified as separately unfitting. The presumably congenital pes planus (along with the contributing cox vara and genu valga) was neither by itself unfitting, nor permanently service aggravated; but, it was rather the pain from the associated conditions and complications which rendered the CI unfit. It is the latter, not the former, which must underpin the Board’s recommendation while remaining compliant with §4.14. An analogous application of code 5276 (flatfoot, acquired) was considered, since it would subsume the pain and complications of pes planus along with the associated anatomical deformity. A bilateral 10% rating under 5276 is justified; but, the only favorable rating (30% bilateral) requires severe disability with marked deformity and significant pain on manipulation. Members agreed that the evidence does not support those criteria. Members further deliberated ratings under 5299-5310 for plantar fasciitis or code 5282 for hammertoes; but, the former is not advantageous to the VA route and the latter yields a maximum rating of 10%. Deliberations settled therefore on recommendations for either the PEB’s bilateral 10% rating under 5279 or separate ratings under 5284 as conferred by the VA. Although the primary residual impairment was metatarsalgia, thus defending the PEB’s decision; members agreed that the multiple diagnoses and surgical residuals more fairly justified separate ratings. Finally, deliberations ensued as to whether a rating higher than 10% could be supported under 5084 (as above). Members agreed, however, that the functional limitations described in the NARSUM and prior to separation the C&P evaluation would not justify a characterization of the disability as more severe than ‘moderate’. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends separate disability ratings of 10% each for the right and left foot conditions under the code 5299-5284.


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 bilateral foot condition, the Board unanimously recommends that each foot be rated as separately unfitting at 10%, coded 5299-5284, IAW VASRD §4.71a. In the matter of the contended pes planus condition, the Board unanimously agrees that no separate disability rating can be recommended. 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 her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Metatarsalgia and Surgical Residuals, Right Foot 5299-5284 10%
Metatarsalgia and Surgical Residuals, Left Foot 5299-5284 10%
Bilateral Pes Planus Category II – Not Subject to Additional Rating
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121105, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         xx
         President
         Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
          COMMANDER, NAVY PERSONNEL COMMAND
                                          
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 9 Aug 13 ICO
(c) PDBR ltr dtd 17 Jul 13 ICO
(d) PDBR ltr dtd 16 Jul 13 ICO
(e) PDBR ltr dtd 9 Aug 13 ICO
(f) PDBR ltr dtd 9 Aug 13 ICO
(g) PDBR ltr dtd 29 Jul 13 ICO
(h) PDBR ltr dtd 8 Aug 13 ICO

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (h).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 15 October 2001.

b. former USN : Disability retirement with assignment to the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective 2 May 2003.

c. former USN : Disability retirement with assignment to the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective 2 June 2009.

d. former USN : Disability separation with a final disability rating of 20 percent increased from ten percent) effective 5 October 2004.

e. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 31 July 2002.

f. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 1 August 2005.

g. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 2 July 2002.
        
3. Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.

 xx
                                                       Assistant General Counsel
                                                      (Manpower & Reserve Affairs)


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