RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00291
BRANCH OF SERVICE:  Army	BOARD DATE:  20150402
SEPARATION DATE:  20061011

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Multi-Channel Transmission Systems Operator) medically separated for a right foot condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The condition “chronic right foot pain, secondary to degenerative joint disease” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic right foot pain, status post talonavicular arthrodesis [surgical fusion of talus and navicular, key weight-bearing bones of the ankle]” as unfitting, rated 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The injury I sustained has severely impacted my Quality of living.”

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 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:

IPEB – Dated 20060824	VA (1 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Foot Pain ... 	5099-5003	10%	Right Foot, Surgical Residuals	5010-5271	20%	20061127	
Other x 0 (Not in Scope)	Other x 4	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20070216 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Foot Condition.  The service treatment record (STR) confirms that the CI fractured his right foot (talonavicular dislocation and associated closed fractures of other talar bones) falling from a truck on 13 June 2004 while deployed to Iraq.  He was medically evacuated to CONUS and underwent initial surgical intervention (open reduction and internal fixation).  He subsequently required a surgical joint fusion in December 2004, followed by hardware removal in March 2005.  The recovery was complicated by non-union and required a final surgical intervention (revision of arthrodesis with external fixator) in January 2006 (9 months prior to separation).  There is scant STR evidence for the final post-operative period preceding separation, although X-rays demonstrated normal alignment with degenerative changes.  The MEB DD Form 2808, Report of Medical Examination, in July 2006 (3 months prior to separation) documented non-specifically decreased range-of-motion (ROM) of the ankle and a “limping” gait.

The narrative summary (NARSUM) was conducted on 2 August 2006 (2 months prior to separation) and documented “... pain [slight and constant] that averages approximately 3/10.  There are limitations in activity, which include running and walking on uneven terrain.”  The NARSUM physical exam documented a normal gait, non-tender surgical scars, “mild” swelling and joint tenderness, and normal vascular/neurological findings.  The examiner documented, “[ROM] of the right ankle is normal, but right subtalar and midtarsal joint motion is limited to less than 25 degrees in each joint and mildly painful with forced movement [refers to intrinsic foot joints, not aligned with a VASRD code].”

A VA Compensation and Pension (C&P) examination was conducted on 27 November 2006 (a month after separation); and, documented constant “stiffness” and “pain with weight bearing” rated 4/10 at baseline with exacerbations to 7/10 “if he stands over 30 minutes, walks any length of time or tries to run (cannot do anymore).”  The examiner noted the intermittent use of an ankle brace for various activities and occasional need for a cane.  The physical exam noted a normal gait without assistive device, “mild” tenderness (dorsum and arch), no swelling, normal alignment, and no joint laxity or instability.  The surgical scars were specifically opined to “not impair the functioning of the foot or ankle.”  The VA examiner specifically excluded various ratable foot deformities, “no hammertoe, high arch, pes planus, clawfoot.”  The VA measured ankle ROM was dorsiflexion 4 degrees (normal 20 degrees) and plantar flexion 34 degrees (normal 45 degrees).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was premised on the “slight and constant” criterion of the USAPDA pain policy.  The VA’s 20% rating under 5010-5271 (traumatic arthritis rated for limitation of motion) was for “marked” limitation under 5271, which is the maximum rating offered by that code (10% is for “moderate” limitation).  In the absence of ankylosis, not evidenced in this case, the only other codes under VASRD §4.71a which are open to consideration are analogous application of 5283 (tarsal, or metatarsal bones, malunion of, or nonunion of) or 5284 (foot injuries, other).  Both of these codes provide identical rating parameters: 10% for “moderate,” 20% for “moderately severe,” and 30% for “severe” disability.  With regards to rating under 5271, although the C&P exam noted very limited dorsiflexion, plantar flexion was reasonably preserved; and, it must be considered that the NARSUM examiner documented normal ankle mobility, noting only some restriction of proximal foot motion.  Members agreed, therefore, that “marked” ROM limitation could not be reasonably concluded from the overall evidence.  With regards to alternative rating under 5283 or 5284, members agreed that the functional limitations in evidence (prolonged standing or walking and running) are fairly characterized as “moderate” (10%), not “moderately severe” or greater.  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 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.  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 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 20140105, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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, AR20150014361 (PD201400291)

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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA