RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00395	
BRANCH OF SERVICE:  Army 	 SEPARATION DATE:  20040728		 

SUMMARY OF CASE:  The evidence of record indicates this covered individual (CI) was an active duty E-5 (Cavalry Scout) medically separated for a right foot condition.  This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The foot condition, characterized as “right foot: chronic nonunion of fifth metatarsal fracture”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions for PEB adjudication (“post-traumatic stress disorder (PTSD),” right hip pain,” “heart burn,” and “elevated lipids,”).  The PEB adjudicated “fibrous non-union of a right fifth metatarsal fracture…” as unfitting, rated 0%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions, including PTSD, were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  He requests re-consideration of his PTSD condition.  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/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. 

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:  
   
Service IPEB – Dated 20040614	VA - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fibrous Non-Union of a Right Fifth Metatarsal Fracture…	5099-5003	0%	Fracture of Right Fifth Toe with the Placement of Screws	5284	10%	20041101	
Post-Traumatic Stress Disorder	Not Unfitting	Post-Traumatic Stress Disorder	9411	0%	20041120	
No Additional MEB/PEB Entries in Scope	Other x 3	
RATING:  0%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20060308 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:    

Right Foot Condition.  The Orthopedics consult, dated April 2004, documented that the CI injured his right foot in May 2003 while dismounting from his vehicle while in Iraq.  He had pain and was told he had a sprain.  In June 2003 he slipped off a Bradley, sustaining an inversion injury to his right ankle and foot.  An X-ray showed a fracture at the base of the 5th right metatarsal bone.  He was casted and a repeat X-ray in July 2003 demonstrated nonunion of the base of the 5th metatarsal.  He redeployed in September and underwent open reduction and screw fixation of the nonunion on 1 October 2003.  He continued to have significant pain in his right foot which prevented him from performing his duties.  He could not perform physical fitness events, could run up to 10 feet, walk about 1/4-1/2 of a mile before having to stop due to foot pain, and stand for about 15 minutes before having to “rock” his weight off his foot.  He could perform upwards of 10 push-ups and 10 sit-ups with difficulty climbing onto or off a military vehicle.  Exam of the right foot showed a well healed incision with no evidence of redness, swelling, warmth and infection.  Sensation was intact and pulses were equal and symmetrical.  He had a mild antalgic gait and used a walker assisted device.  The X-ray studies on 1 April 2004 showed a stable fracture pattern with minimal bony healing/fibrous nonunion. 

The narrative summary (NARSUM), dated May 2004, noted any weight-bearing activity provoked pain in the right foot.  The NARSUM referenced findings from DD Form 2807, Report of Medical History, and DD Form 2808, Report of Medical Examination.  There was tenderness to pressure over the mid shaft of the right fifth metatarsal but was otherwise negative.  He was currently assigned to the legal section of his unit where he performed administrative duties.  He could not perform weight bearing activities required of a combat soldier and could not train for the Army Physical Fitness Test (APFT) without increased pain.  The commander’s statement noted he could not continue with his duties in his current MOS.

At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported he had pain and stiffness in the right foot while at rest and pain weakness and fatigue while standing or walking.  Functional impairment was severely limiting. Limitations with standing and walking were caused by pain in the ankles and feet.  The condition resulted in 2 months times lost from work in the past year. Exam of the musculoskeletal system revealed an abnormal gait; he required a cane because of balance.  The right foot showed no tenderness, weakness, swelling, atrophy or disturbed circulation.  He did not require any type of shoe support.  He was working as a security officer.  The VA assigned a 10% disability rating.

The Board directs attention to its rating recommendation based on the above evidence.  The IPEB adjudicated the fibrous non-union of the 5th metatarsal fracture condition as unfitting, rated at 0%, coded 5099-5003.  The VA rated right 5th toe fracture with placement of screws condition at 10%, coded 5284 (foot injuries, moderate).  The Board considered whether criteria for a higher than 0% rating had been met.  Both the NARSUM and the VA exams documented the CI had an abnormal gait and required the use of a device to assist with ambulation.  He was able to walk, run and walk.  The Board agreed the CI met criteria for a 10% disability rating, coded 5284.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right 5th metatarsal fracture condition.  

Contended PTSD Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that PTSD was 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. According to service treatment records, the CI was deployed to Iraq from March 2003-September 2003.  He went to the Mental Health Clinic on 18 December 2003 due to depression, sleep difficulty, and frequent nightmares. He received medication for depression and for sleep.  The sleep medicine helped him to sleep and suppressed the nightmares.  He was eventually lost to follow-up in February 2004.  

At the Psychiatric NARSUM exam, dated April 2004, the CI reported some nightmares and intrusive memories of his service in Iraq, but they were less frequent and intense.  He had some anxiety symptoms in traffic or in lines.  He denied hallucinations and suicidal ideation.  His affect was somewhat blunted but generally appropriate.  He was much less anxious than on the initial visit.  A diagnosis of PTSD was rendered with a Global Assessment of Functioning (GAF) score of 65 (mild impairment, symptoms).  He received a S2 profile for PTSD but without specific limitations.  At the C&P exam for PTSD, dated November 2004, the CI reported nightmares and difficulty falling asleep. He took a medicine for sleep and a medicine for depression.  He had not received psychotherapy for his condition in the past year, and had not been admitted to a hospital or required emergency room visits for psychiatric reasons.  After leaving the service, he worked and had a good relationship with his supervisor and co-workers.  His relationship with his mom, siblings, wife and children was good.  Mental status exam was normal.  The diagnosis of PTSD was rendered with a GAF of 65. 

The commander’s letter noted the CI’s inability to perform military duties were strictly based upon physical impairments and did not implicate any psychiatric symptoms.  The commander also noted the CI had excelled in all tasks assigned.  He had good relationships with his family, supervisor and co-workers.  The Board noted PTSD was the only MH diagnosis rendered during the DES process and therefore, did not meet the criteria for the TOR.  The Board did not find any evidence such as psychiatric hospitalizations, emergency room visits due to psychiatric problems, or any profiled limitations such as no secrets, no weapons, or restricted duty, which might otherwise indicate unfitness.  Both the NARSUM exam prior to separation and the C&P exam post-separation rendered a GAF score of 65, connoting mild impairment and symptoms.  Board members concluded that his symptoms of PTSD, although mild, did not appear to significantly impact his social and occupational functioning; and thus the PTSD condition was found to be not unfitting.  There was no performance based evidence from the record that PTSD 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 PTSD condition and so no additional disability rating 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the right 5th metatarsal fracture condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the right fifth metatarsal fracture condition, the Board recommends a disability rating of 10%, coded 5284 IAW VASRD §4.71a.  In the matter of the contended PTSD condition, the Board agrees that it cannot recommend it for additional disability rating.  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 her prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Right Fifth Metatarsal Fracture	5284	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131212, 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 XXXXXXXXXXXXXXXXXXXXXXXX, AR20160000444 (PD201400395)

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 10% 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