RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01261
BRANCH OF SERVICE:  Army	BOARD DATE:  20140820
SEPARATION DATE:  20040806

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (14E10/Patriot Fire Control Operator) medically separated for a right foot condition which could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The foot condition, characterized as “right great toe sesamoiditis, status post sesamoidectomy,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified one other condition for PEB adjudication.  The Informal PEB adjudicated the foot condition as unfitting, rated 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The additional condition was determined to be not unfitting.  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 foot condition is 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 20040708	VA - 6 Yrs. Post-Separation 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Toe Pain
(Surgical Residuals)	5099-5003	0%	Plantar Fasciitis/Tendonitis, Right Foot	5284	10%	20100809	
			Surgical Scar, Right Foot	7804	10%	20100809	
Other x 1 (Not in Scope)	Other x 1	20100809	
Rating:  0%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20100929, closest to date of separation (DOS).

ANALYSIS SUMMARY:  The Board noted the earliest VA evaluation was 6 years after separation.  DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation.  Therefore the record evidence was assigned the determinant probative value with respect to the Board’s recommendations.

Foot Condition.  The earliest entry in the service treatment record (STR) referencing this condition is a podiatry note from February 2002.  This documented pain and tenderness around the base of the metatarsophalangeal (MTP) joint of the right great toe, with a working diagnosis of “neuroma (benign nerve cyst) vs. neuropraxia (nerve dysfunction)” of the associated nerve.  The CI was followed by podiatry over the ensuing 18 months with conservative treatment including orthotics and injections, but without lasting improvement.  Various diagnoses were charted; including metatarsalgia, plantar fasciitis, MTP capsulitis and sesamoiditis (small sesamoid bones are adjacent to MTP).  Interim STR entries noted continued pain and localized foot tenderness, painful and limited range-of-motion (ROM) at the MTP joint with normal ROM of the hindfoot and ankle and antalgic gait.  X-rays were normal (no degenerative changes).  Having arrived at a diagnosis of “right foot lateral sesamoiditis with nerve impingement,” a sesamoidectomy (removal of the offending sesamoid) was performed in October 2003 (10 months prior to separation).  The post-operative diagnosis was unchanged from above and normal ROM measurements of the MTP joint and foot/ankle after surgery were documented in the surgical note.  There are no STR entries probative to rating during the 6-month interval between surgery and the narrative summary (NARSUM).  The NARSUM dated 27 May 2004 (10 weeks prior to separation) noted that the CI “continues to have pain with prolonged walking or any pressure to the plantar surface of his great toe joint,” and noted limitations with running, climbing, and heavy carrying; the CI also reported limitations of daily living, citing active play with his children.  The NARSUM physical exam (no comment for gait) noted “significant tenderness” over the lateral sesamoid operative site, some distal numbness of the middle toes, 5/5 strength, decreased flexion of the MTP (5 degrees, normal 30 degrees, not VA Schedule for Rating Disabilities [VASRD] ratable) without deformity and normal ROM of MTP extension and of the ankle.  A VA clinic note 4 months after separation documents “nerve damage to rt. foot ... now experiencing tingling in foot and pain in bottom of foot with walking,” noting a normal gait without specifying significant limitations.  The VA Compensation and Pension (C&P) examination was very remote from separation (and minimally probative as above) but documented continued localized foot pain (although the CI was employed as a mechanic and welder) and tenderness over the right MTP, but normal gait.  Of note, the C&P examiner specifically excluded diagnoses of hammer toe, hallux valgus, pes cavus and pes planus (probative in that it precludes an array of VASRD §4.71a analogous coding options).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating analogous to 5003 (degenerative arthritis) cited the “slight, intermittent” pain criterion of the USAPDA pain policy.  The VA’s (belated) 10% rating was under code 5284 (foot injuries, other) for “moderate disability,” which offers a 20% rating for “moderately severe” and 30% for “severe.”  Members agreed, that IAW VASRD §4.7 (higher of two evaluations), 5003 was not the optimal code for rating in this case, especially considering the lack of X-ray findings or clinical analogy and, that even if it were applied, either §4.59 (painful motion) or §4.40 (functional loss) would support the minimum 10% rating.  Various §4.71a coding options could be considered for analogous rating, but, as per the VA examiner, the diagnostic linkage is not accurate and none would support greater than a 10% rating even if conceded as an analogous code.  Code 5279 (metatarsalgia) is supportable, but offers solely a 10% rating.  The 20% or 30% criteria under the VA choice of 5284 were considered, but the CI’s functional limitations and physical findings at the time of separation do not support a conclusion that the disability was reasonably characterized as greater than moderate.  The action officer opines, and members agree, that the more clinically appropriate choice for analogous coding in this case is under a peripheral nerve code for the neuralgia that was the dominant cause of the unfitting pain and the posterior tibial nerve (code 8625 for neuritis) is anatomically applicable in this case.  This offers a 10% rating for both “mild” and “moderate” impairment, and a 20% rating for “severe” impairment.  Members agreed, as with the 5284 option, that severe impairment could not be justified.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the right foot condition, proposing code 8699-8625 for its clinical specificity.

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 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, the Board unanimously recommends a disability rating of 10%, coded 8699-8625 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	
Surgical Residuals, Sesamoiditis, and Neuritis, Right Foot	8699-8625	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

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, AR2015003028 (PD201301261)

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 10% 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						     

CF: 
(  ) DoD PDBR
(  ) DVA