RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01358
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150710
SEPARATION DATE:  20090218

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aircrewman/Rescue Swimmer) medically separated for bilateral bunions.  The foot condition could not be adequately rehabilitated to meet the physical requirements of her Rating and she was referred for a Medical Evaluation Board (MEB).  The “bunion” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “bilateral bunions, status post bilateral closing base wedge osteotomies, first metatarsals as unfitting, rated a combined 20% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant makes no specific contention in her application.  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 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 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 20081024	VA* - (~11 Mos. Pre -Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Bunions (R)	5280	10%	Status Post Right Bunionectomy	5280	10%	20090114	
Bilateral Bunions (L)	5280	10%	Status Post Left Bunionectomy	5280	10%	20090114	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7	
RATING:  20%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20090421 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Bilateral Bunions.  The CI had a well-documented history of chronic bilateral foot pain in the service treatment record (STR) secondary to the diagnosis of bilateral hallux valgus (Bunions).  She underwent surgical correction/excision of the right foot in February 2008 and the left foot in June 2008.  The STR noted a recurrence of the right bunion in late 2010. There was no recurrence on her left foot.  Postoperatively, she did well with rehabilitation through physical therapy (PT), but pain about the surgical sites remained.  The CI was not considered worldwide assignable secondary to her painful foot condition and therefore, was referred to an MEB.   Post-operative X-rays indicated expected surgical hardware in-place with “excellent alignment.”  At the MEB narrative summary (NARSUM) addendum examination (15 October 2008; 14 months pre-separation), the CI endorsed minimal pain when performing high-impact and full weight-bearing on the affected side.  Her physical examination (PE) revealed a recurrent right sided hallux valgus and “some” abnormal sensation adjacent to her surgical incisions.  All other surrounding physical parameters were normal.  At the initial VA Compensation & Pension (C&P) examination (14 January 2009; 11 months pre-separation), the CI endorsed an aching and sharp localized pain in both feet.  She reported pain in both feet occurring four times per day and lasting 1 hour each episode.  Symptom aggravators include physical activity and prolonged walking/standing.  Relief was obtained with rest and non-prescription anti-inflammatory medication.  During flare-ups, she was able to function with medication.  She denied pain, weakness, stiffness, swelling, or fatigue when at rest.  The examiner noted that “The [CI] reports that she does not experience any functional impairment from this condition.’  Her PE of both feet was normal excepting tenderness.  “She does not have any limitation with standing or walking.”  

The Board directed its attention to its rating recommendation based on the above evidence.  At first glance, it appeared that the PEB’s listed “bilateral” diagnosis was a single “bundled” condition, but actually her bilateral condition was separately rated for each foot at 10% coded 5280 (Hallux valgus, unilateral).  The Board first agreed that code 5280 was appropriate and correctly identified the primary condition and surgical correction.  The maximum impairment rating under this coding option is 10% unilaterally and therefore, with the caveat that this Board’s recommendations may not produce a lower combined rating than that of the PEB, all members agreed that there was insufficient cause to recommend a change in the PEB adjudication of 20% for the bilateral 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.  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 bilateral 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 20140317, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 20 Aug 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN