RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00253
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20060714

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Multi-Tactical Digital Information Link Operator, medically separated for “left foot hallux abductor valgus deformity,” with a disability rating of 10%.

CI CONTENTION:  His left/right foot, knee and pseudo folliculitis barbae conditions continue to cause pain and/or have worsened.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 Veterans Affairs Schedule for Rating Disabilities (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:  

SERVICE PEB - 20060608	VARD - 20070309	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Foot Hallux Abductor Valgus Deformity	5280	10%	Left Foot Hallux Valgus Deformity	5280	NSC	20061211	
Right Foot Keloid	Category II	Right Foot Keloid	7805 	NSC	20061211	
		Right Foot Hallux Valgus Deformity	5280	NSC	20061211	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Left Foot Hallux Valgus Condition.  The service treatment records (STR) and the MEB narrative summary (NARSUM) documented an onset of symptomatic hallux valgus and bunion deformities of both feet in 2004.  A bunionectomy for the right foot was complicated by painful keloid formation (abnormal scar tissue with a propensity to recur with future surgeries) and surgery for the left foot was deferred.  The condition did not respond adequately to conservative measures and a Medical Evaluation Board (MEB) was initiated.  The outpatient STR evidence probative to rating was consistent with that related by the NARSUM, and there was no STR evidence of incapacitating episodes.

The NARSUM was conducted on 20 April 2006 (3 months pre-separation) and stated, “During the past year, the hallux valgus deformity has become more symptomatic and is aggravated by prolonged standing ... constrictive shoes, climbing stairs, and ladders.”  The NARSUM physical examination recorded, “The only remarkable finding on the left foot is a moderate hallux valgus deformity with prominent medial eminence which is tender to palpation.”

A VA Compensation and Pension (C&P) examination was conducted 11 December 2006 (5 months post-separation) and addressed the feet as a single bilateral condition.  It documented the absence of symptoms at rest and stated, “While standing or walking he has pain, stiffness and fatigue ... [but] ... no functional impairment resulting from the above [bilateral] condition.”  The VA physical examination recorded a normal gait and the absence of “tenderness, weakness, edema, atrophy or disturbed circulation.”  The examiner specified the absence of all other VASRD ratable foot deformities.  Unremarkable bilateral ankle examinations were also documented, recording normal measured range-of-motion (ROM).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5280 (hallux valgus, unilateral) was the maximum achievable under the code.  The VA denied service-connection citing insufficient evidence of “permanent residual or chronic disability.”  The PEB’s code was quite specific for the condition under consideration and, as confirmed by the VA examiner, no other specific foot code available under VASRD §4.71a is applicable.  Analogous rating under 5299-5284 (foot injuries, other) was considered, but all members agreed that the higher 20% rating for “moderately severe” disability was not justified by the evidence.  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 adjudication of the left foot condition.

Contended Right Foot Keloid (Category II).  The post-separation VA C&P examination related a history of bilateral bunionectomies with small toe resections in 2000, but there was no STR evidence detailing this or noting any active clinical issues regarding it.  The right foot bunionectomy was performed in March 2005 (16 months pre-separation), and there were STR entries chronicling the post-operative complication of keloid formation.  An entry from February 2006 noted that the keloid was “not always painful” and another 2 months later (a day before the NARSUM) stated that it was “not very painful.”  

The NARSUM stated “The keloid on the right foot is only minimally symptomatic if the patient restricts himself to soft shoes such as sneakers and performs only low impact activity, excludes climbing, constrictive shoes, and running.” The examiner also noted difficulty negotiating stairs and ladders.  The physical examination noted some localized tenderness and moderate ROM limitation of the great toe metatarsophalangeal joint.  The commander’s non-medical assessment (NMA) did not specify conditions or differentiate the limitations attributable to each.  The VA evidence was subsumed with that presented above.

The Board directed attention to its recommendation based on the above evidence.  Although the PEB determined that the condition was Category II (contributing to the unfitting condition), members agreed that it was fairly subject to a Board assessment of whether it was reasonably justified as separately unfitting and thus subject to separate rating.  The Board’s threshold for recommending such a condition as unfitting 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.  Member consensus was that, although the functional limitations specified in the NARSUM could not be distinctly separated from the combined effect of all foot conditions, they were logically incompatible with continued service as a Sailor.  The examiner specified that the keloid condition was minimally symptomatic if non-regulation (and unprotected) foot gear was worn and fitness-specific activities avoided.  This crucial caveat was not contradicted in the NMA or by other STR evidence.  Member consensus was, therefore, that there was adequate evidence for concluding that the right foot keloid condition was reasonably justified as separately unfitting.

Having so decided, the Board deliberated the appropriate coding and rating recommendation for the condition.  As per the VA C&P examiner, there was no specific condition in this case subject to specific rating under any applicable code available in §4.71a.  As discussed with rating alternatives for the left foot, analogous rating under 5284 was considered with a 10% rating for moderate disability.  Members agreed, however, that the best analogous fit with the clinical features and disability in this case was code 5279 (metatarsalgia), with the evidence supporting the maximum rating of 10%.  The Board’s consensus recommendation therefore is that the right foot keloid condition merited a separate rating of 10% coded 5299-5279.

BOARD FINDINGS:  In the matter of the left foot hallux valgus condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended Category II right foot keloid condition, the Board majority agrees that it was sufficiently justified as separately unfitting and recommends a disability rating of 10%, coded 5299-5279 IAW VASRD §4.71a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  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	PERMANENT RATING	
Hallux Valgus Deformity, Left Foot	5280	10%	
Surgical Residuals with Keloid Formation, Right Foot	5299-5279	10%	
COMBINED w/ BLF	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140101, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 2 Mar 16 ICO XXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 2 Mar 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 22 Feb 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 29 Feb 16 ICO XXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (e) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

     d. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
     
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.