RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00533
BRANCH OF SERVICE:  AIR FORCE	SEPARATION DATE:  20070413

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Personnel Craftsman) medically separated for right foot pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty (AFS).  She was issued an L4 profile and referred for an Medical Evaluation Board (MEB).  Right foot pain was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other condition was submitted by the MEB.  The Informal PEB adjudicated right foot pain as unfitting, rated 20% citing application of the Department of Defense Instruction and Veterans Affairs Schedule for Rating Disabilities (VASRD) guidelines.  The remaining migraine headaches condition was determined to be Category II or a condition that can be unfitting but are not currently compensable or ratable.

CI CONTENTION:  Her right foot and headache conditions continue to worsen and negatively impact her daily activities.  She was not evaluated for her right arm and left ankle conditions.  Her 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 (such as the additional right arm and left ankle conditions cited in the contention) 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:

IPEB - Dated 20070227	VA* - (~7 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Foot Pain	5284	20%	Right Foot Stress Fracture of the Fifth Metatarsal including Right Bunionectomy with Scar and Plantar Fasciitis	5299-5284	10%**	20071108	
Migraine Headaches	8100	Cat II	Migraine Headaches	8100	10%	20071108	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  20%	RATING:  30%*	
*Derived from VA Rating Decision (VARD) dated 20080104 (most proximate to date of separation [DOS]).
**VARD 20090430 from appeal back to DOS increased the ratings to 10% right foot fracture/bunion + 10% R foot scar, + 10% bilateral plantar fasciitis, + added 10% for left ankle associated with right foot conditions.

ANALYSIS SUMMARY:

Right Foot.  The MEB narrative summary (NARSUM) and record noted onset of right foot pain subsequent to right fifth metatarsal stress fracture in October 2000 (fifth metatarsal is the long forefoot bone that runs along the outside of the foot aligned with the little toe).  The CI underwent multiple foot surgeries including a metatarsal head resection in April 2004 and scar tissue resection in February 2006.  Physical therapy, shoe inserts/orthotics, and medication did not resolve the pain.  The CI described pain with walking, climbing stairs, pushing on the gas pedal to drive long distances, prolonged standing, and inability to do push-ups or sit-ups or running.  The examiner indicated the CI had “persistent pain with notable post-surgical foot deformity … (and) developed chronic right ankle pain due to gait changes and abnormal foot fall.”  The NARSUM addendum physical exam performed 4 months prior to separation documented an absent (shortened) right fifth toe and point tenderness along the lateral foot border.  There was painful and decreased right ankle range-of-motion (ROM).  The foot was neurovascularly intact.  X-ray of the foot showed evidence of osteotomy of the fifth metatarsal head and was otherwise normal.

At the VA Compensation and Pension (C&P) exam performed 7 months after separation, the CI reported a similar history for the right foot, right foot pain up to 10/10, as well as left ankle pain.  She had a shoe inserts and indicated that “pain can be elicited by activity and relieved by rest and Naprosyn.  You are able to function without medication.  At rest, you reported pain and stiffness, but no weakness, swelling, or fatigue.  While standing or walking, there is no weakness, stiffness, or pain, but swelling and pain are present.”  Physical exam showed the CI had an antalgic gait with use of a cane.  There was painful motion of the right ankle (at the end of VASRD normal ROMs), foot painful motion and a tender scar on the lateral foot.  There was no edema, disturbed circulation, weakness, or atrophy of the musculature.  Neurologic exam was normal.  The diagnoses were status post stress fracture, right fifth metatarsophalangeal with scar, right bunionectomy and plantar fasciitis.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the right foot condition as 5284 (Foot injuries, other) at 20% (“moderately severe”), and the VA rated the right foot at 10% coded analogously to 5284 at 10% (“moderate”).  On appeal, the VA increased the CI’s ratings to 10% for the right foot metatarsal condition, 10% for the tender scar, and 10% for bilateral plantar fasciitis (plus added 10% for the left ankle as associated with the right foot condition).  The CI’s left foot/ankle condition was not in the scope of the PDBR, and no bilateral condition was considered for rating.  There was no indication that the CI could not wear military footgear and any impact of the tender scar was considered in the 5284 rating.  There was no indication that the CI’s condition approximated loss of use of the right foot (40%).  

The Board agreed that the disability from the multiple right foot pain diagnoses overlapped, and that IAW VASRD §4.14 (Avoidance of pyramiding) the CI’s right foot should be rated under code 5284 rather than separately coding/rating each element of the right foot under separate codes.  The Board deliberated on the level of severity of the entire right foot conditions between the 5284 “severe” (30%) and “moderately severe” (20%).  Board consensus was that the multiple foot surgeries, antalgic gait, foot deformity, use of orthotics and a cane, ankle pain and plantar pain with pain on foot manipulation indicated the disability picture more nearly approximated the severe disability picture under code 5284.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board majority recommends a disability rating of 30% for the right foot pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the migraine headaches condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The headache condition was not profiled or implicated in the commander’s statement and was not addressed by the MEB.  The migraine headache condition was reviewed and considered by the Board.  There was no performance based evidence from the record that the migraine headaches condition 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 contended migraine headaches condition and so no additional disability rating is 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 DoDI 1332.39 for rating the foot condition was possibly operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the right foot condition, the Board majority recommends a disability rating of 30%, coded 5284 IAW VASRD §4.71a.  In the matter of the contended migraine headaches condition, the Board unanimously 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
Right Foot Pain (Fifth Metatarsal Resection with Scar and Plantar Fasciitis)	5284	30%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-00533.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

Attachment:
Record of Proceedings 
cc:
SAF/MRBR
DFAS-IN