RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01437
BRANCH OF SERVICE:  Army	BOARD DATE:  20150715
SEPARATION DATE:  20040331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Petroleum Supply Specialist) medically separated for a bilateral foot condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “bilateral metatarsalgia secondary to second metatarsal fractures,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the bilateral foot 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:  The applicant makes no specific contention in his application.  His complete submission is at Exhibit A.  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON 

IPEB - Dated 20040220	VA* - (~6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Metatarsalgia	5279	10%	Bilateral Metatarsalgia s/p Metatarsal Fractures	5279	10%	20040914	
Other Conditions x 0 (Not In Scope)	Other x 0 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20041026 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Bilateral Foot.  The service treatment record (STR) noted that the CI developed bilateral foot pain after performing an extended march during basic training.  Although initial X-rays were normal, subsequent repeat films revealed deposition of new bone in both feet about the 2nd metatarsal bone…thus indicating a continued healing process of a previous fracture.    Further remote X-rays performed on 30 September 2003 revealed complete healing of previously mentioned fractures.  Despite conservative treatment of medications, physical therapy, immobilization, orthotics, and activity restrictions, his painful symptoms continued and he was referred for an MEB.  At the narrative summary (NARSUM) examination (4 months prior to separation), the CI endorsed a dull and constant pain to both feet which increases with activity.  The physical examination (PE) revealed tenderness across the second metatarsal bilaterally.  All other PE parameters to include range-of-motion (ROM) (ankle and toes), strength, sensation, and motor activity were normal and or intact.  There was no comment with regards to any degree of painful motion on examination.  The diagnosis was chronic bilateral foot pain.  The examiner assessed that the CI’s condition severity was “moderate” and the effect on functional ability was “significant.”  The commander’s statement also implicated the CI’s inability to perform duties within his MOS.  

At the VA Compensation and Pension (C&P) examination performed 5 months after separation, the CI reported bilateral foot pain with walking and standing.  He denied any aggravation with performing activities of daily living (ADLs).  The examiner documented a detailed and normal examination excepting bilateral (dorsal) foot tenderness.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB used code 5279 (metatarsalgia) which allowed for a single rating of 10% applied either unilaterally or bilaterally.  Board members first deliberated if the left and right foot, having been de-coupled from the combined PEB adjudication, remained separately unfitting and therefore subject to a Service rating.  The objective clinical STR evidence, as well as X-ray findings, remained equivocal to both feet without a clear indication of one foot significantly more impaired than the other.  Board members agreed that it would be highly speculative to conclude that the disability separately confined to either foot would have rendered the CI incapable of performing his military duties, and member consensus was reasonable to surmise that the combination of both feet was the condition which rendered him the physical restrictions making him unfit for continued military service.  Although there was no direct evidence of painful motion, Board members considered and agreed on a combined rating of both feet conceding VASRD §4.40 (functional loss) noting “a part which becomes painful on use must be regarded as seriously disabled”, based upon the CI’s reported complaints of increased pain associated with an increase in activity.  The most reasonable and appropriate bilateral coding for this case remains with the PEB’s choice of 5279 which confers a 10% rating for bilateral impairment.  None of the other foot codes available in VASRD §4.71a were applicable to the CI’s diagnoses or disability.  There was no evidence of a ratable peripheral nerve impairment or documentation of incapacitating episodes which would provide for additional or higher rating.  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 disability rating for the bilateral foot 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.  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 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 20130917, 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 XXXXXXXXXXXXXXXXX, AR20150012427 (PD201301437)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		
						         
CF: 
(  ) DoD PDBR
(  ) DVA