RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00357
BRANCH OF SERVICE:  Army	BOARD DATE:  20141126
SEPARATION DATE:  20061229

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (13B10/Cannon Crewmember) medically separated for persistent foot pain after surgical treatment of bunion.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3/H2 profile and referred for a Medical Evaluation Board (MEB).  The foot condition, characterized as “foot pain secondary to acquired deformity of the foot, hallux valgus, moderately severe,” 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 “saphenous neuralgia with persistent foot pain,” as unfitting, rated at 0%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Did not fairly and accurately review and evaluate all medical conditions.  See VA records.”

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 foot condition is addressed below; and, 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 Military Records.

RATING COMPARISON:

Service Admin IPEB – Dated 20061220	VA - (5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Saphenous Neuralgia w/ Persistent Foot Pain Post Surgery	8727	0%	Saphenous Neuralgia w/ Persistent Foot Pain Post Surgery	8727	0%	20070404	
Other x 0 (Not in Scope)	Other x 0	
Combined/Rating:  0%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20070524 (most proximate to date of separation)

ANALYSIS SUMMARY:  The Board’s initial charge in this case was directed at determining if the PEB’s approach of combining the foot conditions under a single rating was justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each foot condition are achieved IAW Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself.  Not uncommonly this approach by the PEB reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  Thus the Board must maintain the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Foot Conditions.  The CI had a well-documented history of chronic bilateral foot pain in the service treatment record which initially began in the right foot in 2005 and the left foot in 2006.  An Austin style bunionectomy was performed on his right foot in February 2005 and X-ray images obtained 7 month post-operative revealed the right foot were “normal.”  On 3 February 2006, the CI underwent the same surgical procedure on his left foot.  Post-operative X-rays noted acceptable anatomic boney alignment.  Despite physical and occupational therapy, he continued to have feet pain and paresthesia near his surgical sites.  

At the narrative summary examination on 4 October 2006 (performed 3 months prior to separation), the CI endorsed bilateral foot pain and “constant” numbness to his toes.  He endorsed the inability to run, jump, perform push-ups or 3 to 5 seconds rushes, construct a fighting position, or carry a ruck for two miles.  During the physical examination (PE), the examiner noted spotted areas of decreased sensation about both great toes and the appearance of the toes was described as “approximately normal.”  The commanders’ statement of 17 August 2006 included, “[The CI] is incapable of performing his MOS duties in any situation.”  His final permanent profile dated 17 October 2006, listed chronic foot pain (bilateral bunionectomy) as the sole diagnosis.  

The VA Compensation & Pension examination on 4 April 2007 (performed 3 months after separation), the CI endorsed that his right foot pain was greater than left, also further stated “constant and daily foot pain in the areas of previous surgeries” and “some” numbness and tingling about the surgical scars as well as the medial sides of the great toes.  The CI denied weakness, stiffness, swelling, heat or redness to either foot.  He did wear custom orthotic shoe inserts.  The PE was detailed and revealed a normal gait with bilateral painful ROM at the metatarsophalangeal (MTP) joints.  There were no deformities noted.  There was no edema, instability, or weakness present.

The Board directed attention to its rating recommendation based on the above evidence.  Although not specified, it appeared that the PEB and VA combined both (surgical) feet as a single unfitting condition, coded as a peripheral nerve condition coded 8727 (neuralgia) and rated at 0%.  The Board first agreed that there was sufficient evidence to support the unbundling of the feet based on the necessity for bilateral surgery and constant post-operative pain as well as abnormal sensation in each foot.  Members conceded that each foot is separately unfitting; and, that coding and rating features were logically identical.

Considering the degree of abnormal sensation that correlated with the anatomic path of the saphenous nerve, Board members agreed that the chosen peripheral nerve code 8727 was an appropriate option and that IAW VASRD §4.124, neuralgia is to be rated with a maximum equal to “moderate incomplete paralysis” of the involved nerve; in this case, an 0%.  IAW VASRD §4.7 (higher of two evaluations) the Board also considered code 5280 (hallux valgus; unilateral) in light of the actual diagnosis and bilateral surgical correction.  The sole rating criteria for 10% categorized under code 5280 are an appropriate clinical fit in this surgical case.  After due deliberation, considering all evidence and mindful of VASRD §4.3 (reasonable doubt) and VASRD §4.7, the Board unanimously recommends that each foot be separately adjudicated as follows: an unfitting right foot pain (hallux valgus) with surgical residuals coded 5280 and rated 10%, and an unfitting left foot pain (hallux valgus) with surgical residuals coded 5280 and rated 10%, both IAW VASRD §4.71a, with no other unfitting foot conditions.  Additionally, Board members did entertain VASRD unilateral code 5284 (foot injuries, other) and determined that the intensity of the CI’s symptoms would support “moderate” (10%) impairment to each foot; thereby conferring no additional benefit to the Boards current recommendation under code 5280 for a combined rating of 20%.

By precedent, the Board does not recommend disability ratings for scars unless their presence imposes a direct limitation on fitness.  The evidence indicated “sensitive” scars on both great toes.  The Board considered the objective scar sensitivity and concluded that the overwhelming majority of painful symptoms were surrounding the scar involving adjacent areas to the first MTP joint.  Acknowledging the scar sensitivity may have contributed to the overall painful syndrome, the Board adjudged that there was not sufficient evidence in the record to consider the sensitive scars as additionally separately unfitting and compensable.

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, the Board unanimously recommends a disability rating of 10%, coded 5280 IAW VASRD §4.71a.  In the matter of the left foot condition, the Board unanimously recommends a disability rating of 10%, coded 5280 IAW VASRD §4.71a.  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:

UNFITTING CONDITION	VASRD CODE	RATING	
Hallux Valgus, Surgical Residuals, Right Foot 	5280	10%	
Hallux Valgus, Surgical Residuals, Left Foot 	5280	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 2014, 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 XXXXXXXXXXXXXXX, AR20150007086 (PD201400357)

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:

Encl