RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01769
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141030
SEPARATION DATE:  20040815

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty LCpl/E-3 (0844/Field Artillery Fire Control Man) medically separated for right foot pain.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The right foot condition, characterized as “chronic pain right foot, status post crush injury,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The informal PEB adjudicated the right foot condition as unfitting, rated 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I NOW HAVE ASTHMA WHICH WAS NOT A CONDITION I HAD PRIOR TO MY ENTRY IN THE MARINE CORPS.”

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 right foot condition is addressed below.  The requested asthma condition was not identified by the PEB, and thus is not within the DoDI 6040.44 defined purview of the Board.  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 Naval Records.

RATING COMPARISON:

Service IPEB – Dated 20040628	VA - (1 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Right Foot, Status Post Crush Injury	5299-5003	10%	Status Post Right Foot Crush Injury	5284	0%	failed to report for exam	
Other x 0 (Not in Scope)	Other x 5		
Rating:  10%	Combined:  ##%	
Derived from VA Rating Decision (VARD) dated 20040924.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that suggests a rating should have been considered for an additional condition that was not present upon entry.  The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short the member’s career and then only to the degree of severity present at the time of final disposition.  However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board utilizes VA evidence proximate to separation in arriving at its recommendations and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.  The Board also acknowledges that the CI failed to report for his originally scheduled VA Compensation and Pension (C&P) examination on 10 June 2003.  A 4 year remote VA examination was contained in the case file, but it was not considered for rating in this case.

Right Foot Condition.  The treatment record reflected that the CI had two separate right foot injuries in September 2003.  The first injury was the result of someone sitting on his feet during physical training and the second was a direct fall of 100 pounds of gear onto his right foot.  Initial X-rays were negative and far remote X-rays revealed no evidence of arthritis.  A bone scan was positive in the right foot.  He continued to have pain, swelling and inability to bear weight on the right foot.  Podiatry diagnosed him with a mid-foot sprain, specifically, a Lisfranc’s sprain (across the mid-foot boney connections; metatarsal bones).  Despite immobilization, supports, medication and follow-on physical therapy, his symptoms remained and he was referred for an MEB.  At the MEB examination (5 months prior to separation), the CI reported right foot pain and the inability to run or stand/walk for prolonged periods.  The physical exam noted an antalgic gait.  There was tenderness on the top of the right foot from the front of the ankle forward and beyond the mid-foot.  He was unable to stand on the mid-half (heel lift) of the right foot.  There was no edema or redness present and ‘motor strength’ was normal.  There was no evidence suggesting ankle or foot instability, abnormal movement, deformity or mal-alignment.  There was no comment on the presence of painful motion; although, the examiner specifically stated on the Form 2807, “The [CI] still with continued pain in right foot with ambulation.”  The diagnosis remained unchanged.  The commander’s non-medical assessment clearly indicated the recommendation for the CI be retained on active duty only if there are no restrictions from his designated MOS.  Although absent an original VA C&P examination, a subsequent VARD indicated a continuation of 0% impairment was adjudicated for right foot condition.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 10% under the analogous VASRD code 5299-5003 (degenerative arthritis).  Board members first agreed that the analogized prefix code of 5299 was erroneously listed and most probably was intended to reflect the prefix of 5099 instead.  Despite the absence of formal range-of-motion measurements of the foot, Board consensus was that the MEB examiner’s comment in regards to “foot pain with ambulation” is supported to warrant a minimum of 10% (PEB’s rating) for painful motion IAW §4.59.  Additionally, §4.40 (functional loss) is supported by demonstrated weakness in the right foot.  Board members then considered various coding options which could possibly yield a higher rating.  Although anatomically proximate, the ankle codes such as 5273 and or 5271 were not applicable in this case.  Absent all types of abnormal boney union in the bones of the foot, code 5283 (mal or non-union) was also not applicable.  Code 5279 (metatarsalgia) was considered, but its single rating of 10% would provide no additional benefit to the CI.  The Board then considered code 5284 (other foot injuries) with three rating levels of moderate (10%), moderately severe (20%), and severe (30%) and deliberated if the CI’s condition depicted a higher rating.  Members concluded that absent clinical evidence of foot instability, abnormal movements, deformity and or mal-alignment near the time of separation would not support the higher 20% moderately severe level of impairment.  Although changing the primary arthritis code in this case may indicate a more accurate description of the unfitting condition, it provides no additional benefit in the CI’s favor.  Therefore, after due deliberation and consideration of the totality of the evidence, the Board concluded that the original analogous prefix code of 5299 was indeed listed in error and should rather reflect as 5099.  There is not reasonable doubt in the CI’s favor supporting a change from the PEB’s primary code and rating decision for the right 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 right foot condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s primary code and rating 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 20130918, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 22 Apr 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN