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AF | PDBR | CY2013 | PD-2013-02293
Original file (PD-2013-02293.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02293
BRANCH OF SERVICE: Army  BOARD DATE: 20140624
SEPARATION DATE: 20051216


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (89B/Ammunition Specialist) medically separated for a left (non-dominant) shoulder and bilateral foot conditions. The conditions 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 U3/L3 profile and referred for a Medical Evaluation Board (MEB). The shoulder condition, characterized as “chronic left shoulder pain, LOM [limitation of motion]” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501; as were two foot diagnoses, “right > left foot chronic pain, neuropathy” (judged to fail retention standards) and “bilateral pes cavus, aggravated by trauma” (judged to meet retention standards). No other conditions were submitted. The Informal PEB adjudicated the left shoulder condition as unfitting, rated 0%, citing criteria of the VA Schedule for Rating Disabilities (VASRD). The bilateral foot condition (appropriately consolidating the two MEB diagnoses and specifically implicating only the right foot), although determined to be unfitting, was found to have existed prior to service (EPTS) without permanent service aggravation (PSA) and therefore not eligible for service compensation. The CI made no appeals and was medically separated


CI CONTENTION: The CI elaborated no specific contention in his application.


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 shoulder and foot conditions (first assessing the EPTS and PSA determinations) are addressed below. 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 20050930
 VA (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam*
Chronic Left Shoulder Pain 5201 0% Impingement Syndrome L Shoulder 5201 20% 20051006
Bilateral Foot Pain 5299-5278 EPTS w/o PSA Post-Traumatic Ankylosis, R Ankle 5270 30% 20051006
Surgical Residuals/Fasciitis, R Foot 5284 20% 20051006
Left Foot Plantar Fasciitis 5020 0% 20051006
No Additional MEB/PEB Entries
 Other x 9 20051006
Combined: 0%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 60201 ( most proximate to date of separation [ DOS ] ).
* Exam s not in evidence.


ANALYSIS SUMMARY:

Left Shoulder Condition. The first entry in the service treatment record (STR) regarding this condition is from November 2001 (during assignment to Europe) documenting persistent left shoulder pain since pulling pickets out of the ground the previous month. The next follow-up note is 6 months later, documenting continued pain and decreased range-of-motion (ROM), but a note 3 months later documents full passive and active ROM with painful motion. The CI was referred for specialty care and an orthopedic addendum to the narrative summary (NARSUM) documents three orthopedic visits in Germany (mid-2002 to early 2003) that are not in evidence. These visits included joint injections and the addendum on 19 April 2005 states that he was then deployed to Kuwait “and wasn’t seen about his shoulder again until the present time.” The orthopedist’s examination at the time of the addendum (8 months pre-separation) documented full ROM (no comment regarding painful motion) and localized tenderness as the only joint finding. Magnetic resonance imaging performed 20 April 2005 demonstrated tendon inflammation and a “tiny partial tear” of the rotator cuff without surgical indications. The only measured ROM from the service was by physical therapy (PT) that same month (8 months pre-separation); documenting (forward) flexion to 140 degrees and abduction to 145 degrees (normal 180 degrees for both), and specifying painful motion. There is no STR evidence of (or clinical basis for) instability, ankylosis or other ratable features and no documentation of incapacitating episodes. The NARSUM documented shoulder pain rated 7/10 and detailed profile limitations. The physical exam documented “loss of motion … secondary to pain.” The post-separation (2 months) VA C&P examination is not in evidence, but the rating decision documented flexion and abduction to 80 degrees in each plane.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 0% rating was under code 5201 (limitation of motion) which requires limitation of flexion or abduction to shoulder level (90 degrees) to achieve the minimum rating (20%) and cited the MEB PT measurements as not meeting the minimum threshold. The VA’s rating of 20% under the same code was consistent with the C&P measurements (80 degrees). In assessing the probative value of the service vs. VA ROM evidence as a basis for the Board’s recommendation, it is noted that there is abundant corroborating evidence from the STR and orthopedic addendum suggesting that the significantly compromised ROM elicited by the VA examiner was not consistent with the baseline limitation of motion. All members agreed; however, that IAW with VASRD §4.7 (higher of two evaluations) the shoulder should be rated under code 5024 (tenosynovitis) which would achieve a minimum 10% rating premised on VASRD §4.59 (painful motion); the latter is well supported by the evidence. After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left shoulder condition under code 5024 (tenosynovitis).

Foot Condition. The CI’s Military Entrance Processing Station entry medical examination (dated 16 August 2000) documents a history of acid burns to both feet, but the physical findings are not in evidence. There are numerous STR entries referencing a crush type injury to both lower extremities related in the NARSUM as, “27 February 2003, 2 days after deployment to Kuwait, he was preparing a combat configured load and a pallet of 50-caliber ammo dropped onto [CI’s] lower extremities, crushing his legs from the knees down to his feet.” There are, however, no medical records documenting the occurrence; and, a formal line of duty confirmation is not in evidence (although requested by the PEB). The CI subsequently stated that he had been unable to obtain medical care over the ensuing 2-3 month interval and reported that he had been unable to walk flat footed and had been walking on the side of his right foot (ankle inversion) after the incident. The first STR entry for the condition is dated 11 May 2003 (Vilseck, Germany), and is referred to in the PEB excerpt below. The Board’s interpretation of this handwritten note, at variance with the PEB interpretation, is that the CI stated that he had been seeing foot doctors since 12 years of age (PEB implies that he had not seen a foot doctor in 12 years). That note does not refer either to an injury or gait disturbance. A follow-up entry 2 weeks later documented a history of the above noted injury and inversion posture of his right foot and also documented hallux valgus (congenital misalignment of great toe) and bunion conditions. The first podiatry specialty note (Wuerzburg, Germany) is dated 10 June 2003 and is also referenced in the PEB excerpt. It documented hallux valgus and pes cavus (claw foot, congenital) deformities of both feet and full ROM of the right ankle and hindfoot. That note itself did not reference trauma, but a follow-up orthopedic entry provided a history of injury to the right foot only. All subsequent STR entries in the outpatient record were directed at the right foot and only the right foot condition was profiled. Left foot symptoms did not surface in the record until the MEB proceedings. The baseline foot diagnoses of bilateral bunions, hallux valgus and pes cavus were confirmed in multiple subsequent STR entries. An entry a week later raised a suspicion of nerve injury as the cause for the pain and a follow-up nerve conduction study (electromyogram) demonstrated “mild” injury to the superficial and deep peroneal nerves proximal to the ankle. In July 2003, the foot was cast into proper alignment, with follow-up notes documenting the ability to maintain neutral ankle position, but continued claw foot.

On 3 September 2003, the CI was evacuated to CONUS for advanced specialty care with a diagnosis of “neuropathy right foot status-post crush injury … complex case that requires evaluation from most senior foot and ankle surgeon in the military.” The receiving orthopedic note documented claw toes, continued inversion of the ankle (“varus hindfoot ~ 35⁰ flexible”), and “right acquired peroneal nerve damage.” The CI underwent a prolonged course of orthopedic and podiatric specialty treatment until mid-2005, which included four surgical procedures. These are well documented in a podiatry addendum to the NARSUM. Surgical interventions included tendon transfer to reduce the inversion and pes cavus deformity in November 2003, with a subsequent revision and lysis of adhesions in April 2004. There was documentation of “full unrestricted motion” of the ankle under anesthesia. The third procedure in May 2004 was a bunionectomy and tendon surgery to relieve the claw foot. The final procedure in November 2004 was revision of the last tendon procedure, but also included a distal peroneal nerve transection for relief of neuralgia. Multiple clinical impressions of peroneal neuropathy are in evidence. Various progress notes document favorable response to interventions; with decreased pain, improved joint alignment and improved gait. There are several entries documenting ROM of the right ankle, averaging 50% reduction of both plantar flexion and dorsiflexion.

The podiatry addendum 8 months prior to separation documented pain rated “6/10 progressing to 9/10 on his right foot;” with no rest pain of the left foot, but 5/10 pain with activity. The physical exam noted continued inversion (severity not specified) and toe deformity (hyperextension) of the right foot, with normal toe alignment on the left; the right foot was “extremely sensitive to palpation” with “little or no dorsiflexion and limited plantar flexion;” and, ROM was normal on the left. In response to a query by the PEB regarding EPTS status of the pes cavus deformity, the MEB podiatrist responded with the following email excerpt.
Though both of his feet show a pes cavus structure (which he came into the Army with) the right foot (the one which was more severely injured and had 4 subsequent surgeries) now has more fixed (stiffness) forefoot adduction, forefoot inversion and ankle equinus, all of which serves to exaggerate the cavus position when he walks. … So I would say that even though he started out with two cavus feet, the one on the right is now in a greater degree of cavus as well as being stiff.

The NARSUM documented “chronic 6-7/10 pain right foot” with a “right leg antalgic limp;” and lateral pain of the left foot with prolonged weight bearing. The physical exam noted no extensor function of the right toes (consistent with expected consequences of corrective procedures) and “very limited dorsi and plantar flexion” on the right with normal ROM on left. The MEB’s DA Form 3947 submission for the podiatry conditions checked “No” for both EPTS and PSA. The PEB’s DA Form 199 rationale for its EPTS and PSA determinations (see evidence above) is excerpted below.
Bilateral foot pain with a history of crush injury (2/03) due, according to the NARSUM, to a pallet of 50-caliber ammo dropping on lower legs. There is no medical record for that injury. The first medical record, physical therapy, regarding the feet is May 2003 without any mention of the injury and relating a history of not seeing a foot doctor "since 12 yrs.” The medical record (6/03) reports Soldier's injury was just to the right foot and that Soldier had bunions and chronic foot pain for 2-3 years. Ultimately, according to the record, Soldier had surgery to correct claw toes. Physical exam is non-contributory to the rating. Existed prior to service. There is no evidence of permanent service aggravation. Surgery to correct an [EPTS] condition is not considered permanent service aggravation.
As noted above, this finding was not appealed by the CI. The initial VARD, referencing the missing C&P examination (2 months pre-separation), documented “pain, weakness, stiffness, swelling, fatigue and limitations with standing and walking due to right foot and ankle pain;” and 0 degrees dorsal and plantar flexion of the right ankle.

The Board directs attention to its recommendations based on the above evidence. The Board does not challenge service EPTS determinations (nor is there any evidence for doing so in this case), but does exercise the prerogative of assessing the PSA element IAW DoDI 1332.38 (E3.P4.5.2.3. - Presumption of Aggravation). Members agreed that the baseline (and clearly EPTS) pes cavus, bunions and hallux valgus issues with the feet were very significant and highly contributory to the disability. It was also agreed that the surgical residuals (all of which were expected outcomes) from the service-provided corrective procedures would not reasonably constitute service aggravation. Although the inability of the PEB to obtain formal documentation of the inciting trauma and the conflicting early treatment notes (variance between Board and PEB interpretation of source evidence not significantly relevant) raise probative value concerns with the nature and severity (or even occurrence) of the service injury, members agreed that the preponderance of evidence in the clinical record support a conclusion that peroneal nerve injury (via whatever mechanism) should be conceded. This diagnosis was established prior to the corrective surgical interventions and the record establishes that the neuropathy persisted through to separation. The podiatric opinion excerpted above also suggests permanent aggravation of the EPTS conditions themselves; although, it must be considered that there is no corroborating opinion or supporting clinical evidence for this assumption; and, furthermore, any aggravation present was also associated with the outcome of the corrective surgeries (see above). After protracted deliberation, members agreed that the baseline EPTS conditions (as above) were not permanently affected by any event in service, with the possible exception of corrective surgical residuals. The latter, a typical result of indicated surgical treatment of the EPTS conditions, do not constitute service aggravation (permanent or otherwise). Conversely, all members did agree that the right peroneal neuropathy (ascribed to the reported injury or otherwise) was fairly conceded as service acquired and, furthermore, that its contribution to the unfitting disability was significant and reasonably conceded as unfitting. Since the left foot was not affected by the conceded neuropathy, it is not subject to rating.

Having arrived at the above conclusions, members deliberated the appropriate coding and rating recommendation for the neuropathy. Although multiple coding and rating options were discussed, it remains that none of the available ankle or foot codes could be applied without subsuming disability attributable to the EPTS (without PSA) conditions already determined to be ineligible for rating as above. It was also agreed that separate foot and ankle ratings could not be recommended in this case without unacceptable infringement on VASRD §4.14 (avoidance of pyramiding). It was thus clear that the only logical coding and rating choice was the applicable peripheral nerve code under VASRD §4.124a. Conceding the most proximal origin of the neuropathy, the appropriate code is 8723 (neuralgia, deep peroneal nerve); which offers a 0% rating for “mild” impairment, 10% for “moderate,” and 20% for “severe.” Deliberation settled on a 10% vs. 20% recommendation. This decision was complicated by the issue of trying to separate ratable pain and disability due to neuropathy from that associated with the non-ratable conditions, and by the lack of any clarity from the evidence regarding the response of the neuropathy to the ablation procedure performed in conjunction with the final surgery. It was ultimately concluded that the “severe” characterization could not be justified without subsuming (pyramiding) the pain and disability from the conditions ineligible for rating. Considering all of the evidence and with deference to reasonable doubt, all members concurred with a Board recommendation of a 10% rating for the right foot condition under code 8723.


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 left shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5024 IAW VASRD §4.71a. In the matter of the bilateral foot condition(s), the Board unanimously agrees that all associated diagnoses existed prior to service and were not permanently aggravated by service; except, the acquired neuropathy of the right foot. With regards to the latter, the Board unanimously recommends a disability rating of 10%, coded 8723 IAW VASRD §4.124a. 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
Chronic Strain, Right Shoulder 5024 10%
Surgical Residuals and Acquired Peroneal Neuropathy, Right Foot 8723 10%
Chronic Pain and Residuals of Corrective Surgery: Bilateral Foot Pes Cavus, Hallux Valgus, and Bunions Existed Prior to Service without Permanent Service Aggravation
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131030, 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, AR20150002585 (PD201302293)
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

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