RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD1300782
BRANCH OF SERVICE:  Army	BOARD DATE:  20131024
SEPARATION DATE:  20070329

 SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88M10/Motor Transport Operator) medically separated for foot and knee conditions.  She sustained fractures to her right foot and injury to her left knee in a motor vehicle accident (MVA) in 2003.  After extensive treatment by podiatric providers for her foot injury, she underwent surgery in 2005.  She continued to experience pain in her right foot as well as her left knee despite various treatment modalities.  Neither condition could be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The foot and knee conditions, characterized as “degenerative arthritis, 1st through 5th MTPJs (metatarsal-phalangeal joints) of the right foot” and “left knee pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “degenerative arthritis of right foot and left knee” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am seeking Retirement status based on Traumatic Injury to the Right Foot”

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.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.  The rating for the unfitting right foot and left knee conditions are 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.

RATING COMPARISON:

Service IPEB – Dated 20070220	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of Right Foot, Left Knee	5003 	10%	Traumatic Injury to the Right Foot (Claimed As Metatarsal Pins and Great Toe Numbness)	5284	10%*	20070523	
			Degenerative Changes of the Left Knee with Scars	 5260-5010	10%	20070523	
No Additional MEB/PEB Entries	Other x 4	20070523	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20070917 (most proximate to date of separation [DOS]).
* Increased to 30% on VARD 01 Apr 2013…retro to 13 Aug 2012
ANALYSIS SUMMARY:  The PEB combined a painful right foot and a left knee condition under a single disability rating coded as 5003 (degenerative arthritis).  Although VASRD §4.71a permits combined ratings of two or more joints under code 5003, it allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each unbundled condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  Since the Board’s decisions in these areas can yield various recommendations which depend on the interplay of all the considered conditions with both Disability Evaluation System (DES) fitness principles and VASRD rating options; the Board will present the evidence for each of the combined conditions, followed by the discussion of recommendation options deliberated and the resulting decisions.

Right Foot Condition.  Resulting from the 2003 MVA, the CI received fractures to her 2nd, 3rd, and 4th metatarsal bones in her right foot.  Initially, the fractures were treated with foot inserts, boots, physical therapy, profiles and crutches with good success.  The service treatment record (STR) noted “right 2nd-4th metatarsal neck fractures healed” with “release to full duty” as disposition.  While deployed from September 2003 to April 2004, the CI had a return of right foot pain in January 2004.  The STR remained silent from early 2004 until late 2005 when records show the inability to stand or walk without pain in her right foot.  This was subsequently diagnosed as metatarsalgia.  X-rays revealed degenerative joint disease with cysts and bone spurs, as well as anatomical distortions (mal-alignment) to about 1-4 metatarsals with no evidence of new fracture.  The CI underwent surgical correction for the metatarsal abnormality on 9 December 2005.  Postoperative symptoms and serial X-rays revealed a “delayed union” of the right metatarsals.  A podiatry follow-up exam on 30 October 2006 (5 months prior to separation) revealed right forefoot edema, with painful motion and contractures of the forefoot joints with healed metatarsals.  The commander’s statement expressed the opinion that the CI was incapable of “performing almost any military function.  She is unable to walk without crutches at this time and is unable to perform any physical exertion.”  The narrative summary (NARSUM), (4 months prior to separation), described the right foot pain as “severe” and functional limitations included prolonged weight-bearing, running, jumping, marching or walking activities.  The examination revealed an antalgic gait, decreased sensation to toes, decreased muscle strength with resistant range-of-motion (ROM), and painful motion with tenderness over the distal metatarsals.  There was edema to the right forefoot.  At the VA Compensation and Pension (C&P) evaluation, (3 months after separation), the CI reported improvement with less running and civilian footwear; but, “still has discomfort with prolonged weight-bearing such as standing.”  The VA examination noted an assisted gait with no direct comment on foot or ankle findings.  Her functional limitations were documented as “…inhibiting ability to ambulate at work.”  There were no periods of incapacitation.

Left Knee Condition.  Initially after the MVA, plain X-rays of the left knee indicated a fractured patella (knee cap).  However, a follow-up magnetic resonance image (MRI) confirmed the presence of bruising about the patella (no fracture) with adjacent soft tissue edema and joint effusion.  Six weeks after the injury (18 June 2003), the orthopedic examiner noted the CI was without complaint and the left knee ROM was normal with flexion 0-110 degrees.  In November 2005, the CI returned with a 2-week history of left knee pain.  The examination revealed patellar tenderness with decreased sensation about the knee joint.  There was normal strength without instability.  There was no effusion present on X-ray.  The examiner opined it was an acute episode stemming from a chronic condition originating from the MVA.  The left knee was profiled as “temporary” in 2006 and “permanent” in 2007, just prior to separation and was not implicated in the commander’s letter.  The NARSUM described her inability to ruck-march, run or walk long distances due to knee pain.  Additionally, “She is unable to mount and dismount military vehicles.  She is unable to participate in physical training.”  The examination revealed full ROM of lower extremities, no knee effusion or patellar grind.  There was no comment on painful motion.  At the C&P evaluation (3 months before separation), the CI reported left knee pain with associated “numbness of the entire patellar area” as well as feelings of weakness, instability and give-way.  Examination revealed an altered gait, attributed to the foot condition with wearing a boot and use of crutches.  The left knee was tender without instability.  ROM was normal with flexion of 0-130 degrees.  Although the examiner noted an effusion on physical examination, the MRI definitively noted, “there is no joint effusion” with evidence of degenerative changes.  There were no periods of incapacitation.

The Board directs attention to its recommendations based on the above evidence.  Members first deliberated if the right foot and left knee conditions were reasonably justified as separately unfitting.  Members agreed that based on the above evidence, there was a questionable basis for arguing that each condition was separately unfitting.  The Board deliberated if the CI’s left knee condition was at a level of severity as to prevent performance of her military duties.  The evidence reflected that the left knee was associated with less impairment than the right foot.  The disparity was such that the question was raised of whether the left knee was reasonably justified as separately unfitting.  The Board, by precedence and as a matter of course (barring compelling exception), does not exercise the latitude of making unfavorable recommendations countering a PEB’s determination that a condition was separately unfitting and ratable.  In this case, there were similarities in the functional limitations of both conditions and the vast majority of those limitations, applicable to her MOS, stemmed from the use of crutches and the wearing of an immobilizing boot on her right foot and not specifically associated with a left knee condition.  The evidence of nearly 2 years (2003-2005) without documented knee symptoms combined with “foot only” related profiles (during the same period) supports the questionable basis of the left knee being found unfit.  Objectively, the left knee remained with a high degree of ROM with normal strength and stability without crepitus.  Overall, the evidence indicated minimal impairment to her left knee without satisfactory demonstration of painful or limited motion.  The Board concluded that the evidence in the STR does not support a conclusion that the left knee condition would have caused the CI to be referred into the DES and to have been determined to be unfit.  Accordingly, the Board cannot recommend a separate rating for it.  In comparison, the right foot condition with complications of delayed surgical healing, contractures and painful (assisted) mobility were the mainstay of the CI’s prolonged disability.  The preponderance of clinical examinations indicated, more often than not, that the right foot remained the primary and predominating condition.  The right foot was consistently focused on all profiles and noted by the commander.  Considering the CI’s severity, totality and chronicity of right foot symptoms, Board member consensus was that sufficient performance based evidence existed to support a conclusion that the functional impairment from the right foot was integral to the CI’s inability to perform in her MOS; and, that the right foot condition was reasonably justified as separately unfitting in accordance with VASRD §4.71a criteria for separate rating.

The Board first considered if a VASRD compliant code for the right foot would rate at a level greater than the PEB’s bundled 10%.  The PEB’s choice of VASRD code 5003 is consistent with multiple joints (metatarsals), but absent incapacitating episodes the maximum rating is 10%. Additionally, code 5279 (metatarsalgia) does not allow for a rating greater than 10%.  The Board also considered codes 5283 (metatarsal; non-union) and/or 5284 (foot injuries) both rated at 10% (moderate) or 20% (moderately severe).  Members agreed that painful motion of the right foot was well supported and would achieve a separate compensable rating under VASRD §4.59.  All members agreed that VASRD §4.7 (higher of two evaluations) should apply.  The Board also considered ratings under code 5310 (muscle Group X), but concluded that the CI’s underlying structural foot issues with normal strength were a poor fit with this code for muscle dysfunction.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating factor of 20% for the right foot.

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 combined degenerative arthritis of right foot, left knee condition, the Board unanimously recommends that it be rated for one separate unfitting condition as follows: right foot; surgical residuals coded 5284 with a disability rating of 20%; IAW VASRD §4.71a.  The left knee condition is determined to be not unfitting and thereby is not subject to disability rating.  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	
Right Foot; Surgical Residuals	5284	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130607, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-RB									

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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20130021832 (PD201300782)

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