RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX 		CASE:  PD-2013-01779
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20050422

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty USAR CW2 (Scout Pilot) medically separated for chronic left ankle and foot pain.  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).  Charcot-Marie Tooth Type 1 was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four conditions (kyphosis, neck pain, hyper-inflated lungs and bilateral knee pain) all meeting retention standards for PEB adjudication.  The Informal PEB adjudicated “pain and weakness of the lower extremities with progressive pes cavus and neuropathy typical for Charcot-Marie Tooth disease” a condition existing prior to service (EPTS) and not compensable.  The PEB noted this is a known hereditary condition without permanent service aggravation (PSA) and therefore not compensable.  The CI submitted additional information.  An Informal Reconsideration adjudicated “chronic left ankle and foot pain” as unfitting, rated 0%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  No change to the previous EPTS determination for the pain and weakness of the lower extremities with progressive pes cavus and neuropathy was made.  The remaining conditions (kyphosis, neck pain, hyper-inflated lungs and bilateral knee pain) were determined to be not unfitting and therefore not rated.  The CI made no further appeals and was medically separated with a 0% disability rating.  

CI CONTENTION:  He was given a higher rating by the VA for his conditions and was not evaluated for PTSD.  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 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:  

Informal Recon – Dated 20050201	VA - (5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Ankle and Foot Pain	5099-5003	0%	Bilateral Pes Cavus	5278	10%	20050924	
Charcot Marie Tooth Disease (pain/weakness of lower extremities w/ progressive pes cavus and neuropathy	8099-8023	EPTS w/o PSA	Charcot Marie Tooth Syndrome	5283-5284	10%*	20050922	
Kyphosis	Not Unfitting	No VA Placement	
Neck Pain	Not Unfitting	Neck Pains	5237	NSC	20050924	
Hyper-inflated Lungs	Not Unfitting	No VA Placement	
Bilateral Knee Pain	Not Unfitting	Bilateral Knee Pains 	5257	NSC	20050924	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 6		
Rating:  0%	Combined Rating:  30%**	
Derived from VA Rating Decision (VARD) dated 20060201 (most proximate to date of separation [DOS]).
 *20060320 VARD changed VA code to 8523 and rate LLE and RLE @20% each effective DOS based on VA exam of 20060304.

ANALYSIS SUMMARY: 

Chronic Left Ankle and Foot Pain.  The CI initially developed left ankle pain after running in January 2000.  X-rays were negative and he was treated conservatively for a left ankle sprain.  In September 2001, he fractured his left ankle in a motor vehicle accident.  Over a 4 year period, the CI reported multiple left ankle sprains as well as anatomic anomalies to both feet.  His radiographic work-ups eventually lead to comparison films that revealed consistencies of Charcot-Marie-Tooth (CMT) disease (a genetic neuromuscular condition); DNA testing confirmed the diagnosis.  Electro-diagnostic (Edx) testing on 07 September 2004 was positive for left lower extremity sensorimotor peroneal nerve neuropathy.  Despite numerous specialty consultations and conservative therapy, the CI’s left ankle and foot pain continued and he was referred to an MEB.  At the MEB narrative summary (NARSUM) examination on 10 September 2004 (7 months pre-separation), the CI’s chief complaint was, “I am having left foot pain.”  He denied sensory and or muscle mass changes in his lower extremities.  The MEB physical examination (PE) revealed high foot arches (left > right), atrophy of intrinsic foot muscles, and tenderness of the left foot.  His gait was antalgic.  Strength and sensation within the left foot were normal.  There was decreased left ankle range of motion (ROM).  Although not specifically identified as to the number of toes affected, the report simply noted, ‘hammertoes are present.’  His listed diagnosis remained unchanged and the examiner stated, “[The CI’s] prognosis is unpredictable at this point but could progress to impairment of both upper and lower extremity weakness requiring ambulatory aids.”  At the VA Compensation and Pension (C&P) examination performed on 24 September 2005 (5 months post-separation), the CI reported bilateral foot pain.  His PE was cursory and incomplete in its description without measured ROM of the left foot.  Although he wore braces on both ankles, a normal gait was present.  Other than noting the bilateral ankle braces, the right ankle/foot was absent further comment.  The single goniometric ROM evaluation in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, is summarized below. 

Ankle ROM
(Degrees)	PT ~6 Mo. Pre-Sep	
	Left	Right	
Dorsiflexion (20 Normal)	-5	0	
Plantar Flexion (45)	25	40	
Comment	tenderness; antalgic gait	
The Board directed its attention to its rating recommendation based on the above evidence.  After reconsideration the PEB assigned a 0% rating for the chronic left ankle and foot pain analogously coded under 5003 (degenerative arthritis) citing “adequate mobility but some lateral laxity” as well as maintaining the CMT condition and its associated neuropathy as EPTS without PSA.  The VA found a 10% impairment rating for both the actual CMT condition as well as for bilateral pes cavus (elevated foot arch) citing limited motion.        

Board members first deliberated and agreed that the limited ROM of the left ankle was supported under VASRD code of 5271 (ankle; limited motion) for a 10% (moderate) or 20% (marked) impairment.  Members concluded that despite the preservation of normal foot strength, the findings of an antalgic gait, muscular atrophy, and tenderness in the left foot most appropriately described a ‘marked’ degree of impairment.  Additionally, the Board considered VASRD code 5278 (pes cavus; unilateral) for a possible higher (30%) rating, but all members agreed that the evidence did not fulfill the required criteria.  Absent evidence of mal-union, non-union, specific metatarsal abnormality, or a dropped forefoot, there were no alternate or analogous coding options that were more beneficial than the recommended 20% rating under §4.71a.          

Other PEB Conditions. 

Charcot Marie Tooth Disease (pain/weakness of lower extremities w/progressive pes cavus and neuropathy).  The Board’s main charge regarding this condition is the evaluation of the PEB’s EPTS without PSA determination.  The USAPDA Advisory opinion dated 16 May 2008 stated that “There was no evidence in the case file that indicated that his [CMT] disease progress had been advanced beyond that which was normally expected for said disease”; and therefore, was not PSA.  Board members deliberated and agreed that although not possessing symptoms prior to Service enlistment, the genetic nature of CMT disease was appropriately identified as being EPTS.  The main issue before the Board was a determination of PSA in reference to the prior existing CMT condition.  The orthopedic specialist submitted a memorandum to the PEB dated 3 January 2005 in support of the CMT condition be considered as PSA.  The provider specifically noted worsening of CMT-related conditions which occurred while ambulating on uneven terrain while deployed in Afghanistan. 

The Board opined that the natural progression of CMT is centered upon muscle weakness in all extremities associated with decreased muscle bulk, reduced tendon reflexes, and eventual sensory loss…all resulting in various latent orthopedic abnormalities.  Members concluded that the CI’s various acute medical issues affecting his lower extremities (fractures, sprains, tendonitis, tenosynovitis, and instability) that occurred throughout his military career were attributed solely to a natural progression of the life-long hereditary CMT diagnosis.  The Board was not in agreement with the orthopedic report citing “ambulating on uneven terrain” while deployed as being a cause for a PSA ruling.  Board members ultimately agreed that a sound argument favoring a conclusion that the CMT condition was permanently aggravated by service duties was not present and therefore, no additional impairment rating is recommended.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the kyphosis, neck pain, hyper-inflated lungs, and bilateral knee pain were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  None of these conditions were noted as failing retention standards.  All conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.

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 ankle/foot condition, the Board unanimously recommends a disability rating of 20% coded 5271 IAW VASRD §4.71a.  In the matter of the CMT disease and its associated neuropathy condition, the Board unanimously recommends no change from the PEB determination EPTS without PSA.  In the matter of the contended kyphosis, neck pain, hyper-inflated lungs, and bilateral knee pain conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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:    

CONDITION	VASRD CODE	RATING	
Chronic Left Ankle/Foot Pain	5271	20%	
COMBINED RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131021, 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 XXXXXXXXXXXXXXXXXXXX, AR20150018751 (PD201301779)

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:

CF: 
(  ) DoD PDBR
(  ) DVA