RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01521
BRANCH OF SERVICE:  Army	BOARD DATE:  20140827
SEPARATION DATE:  20080901

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (68E/Dental Assistant) medically separated for a right foot condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty but could perform an alternate physical fitness test.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right foot condition, characterized as “right foot pain status post arthroplasty of the second metatarsophalangeal joint for Freiberg infraction”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Bilateral patellofemoral syndrome condition was also submitted by the MEB as meeting retention standards.  The Informal PEB adjudicated “metatarsal nonunion” as unfitting, rated 20%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The PEB determined the bilateral patellofemoral syndrome condition was not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Continuing severity in medical condition since discharge.”

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 right 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  IPEB – Dated 20080712	VA - (1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Foot	5283	20%	Residuals of Freiberg Infraction Right Foot	5284	0%	20081016	
Other x 1 (Not in Scope)	Other x 2	20081016	
Combined:  20%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20081202 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Foot Condition.  The CI had direct trauma resulting in a closed 2nd metatarsal (foot bone) fracture of her right foot in June 2007.  Initially treated with non-weight bearing support, casting, medications and profiled restrictions, her foot pain persisted.  Serial X-rays provided evidence of avascular necrosis (AVN) (death of bone tissue) of the 2nd metatarsal bone.  Secondary to continued painful symptoms, Podiatry performed a metatarsal resection on 21 August 2007.  Initially, she did well after surgery whereby January 2008 she had less pain and was able to “wear normal shoes and boots, but unable to prolonged exercise walking or running;” however, within a few months, her pain returned.  She declined the offer of additional surgery and requested an MEB.

At the MEB examination on 3 June 2008 (3 months prior to separation), the CI reported constant and throbbing 9/10 right foot pain worsened with short distance walking or standing for more than 2 minutes.  The examination revealed “a nearly normal gait” and full but painful motion of the 2nd metatarsophalangeal joint with weakness of the same at 3/5.

The VA Compensation and Pension examination on 16 October 2008 (6 weeks after separation), the CI reported constant right foot pain aggravated by minimal walking with relief only by non-weight bearing of the injured foot.  She did not require any assisted walking device and her activities of daily living (ADLs) are not adversely affected.  The examination revealed mild swelling and tenderness about the 2nd metatarsal without evidence of painful motion or loss of strength as measured at 5/5.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition under VASRD code 5283 (mal-union or non-union of the metatarsal bones) at 20% citing moderately severe symptoms.  The VA rated the condition under VASRD 5284 (foot injuries; other) conferring a 0% rating based on the absence of the minimum rating of “moderate” symptoms.  Board members agreed that either mal-union or non-union most accurately reflected the latent pathology in the presence of AVN and, therefore agreed that the anatomic appropriate code for this condition is indeed the PEB’s chosen 5283.  Code 5283 includes moderately severe at 20% and severe at 30%.  Board members deliberated if the symptom severity rose to the 30% rating level.  Member consensus was that maintaining the ability to perform ADLs coupled with ambulating without the need for any assistive device would be sub-threshold for the 30% severe level and more accurately depicts the 20% moderately severe.  Therefore, after due deliberation and consideration of the totality of the evidence, the Board concluded that there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s 20% rating decision 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.  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 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 20140320, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX AR20150006601 (PD201401521)

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