RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01747
BRANCH OF SERVICE:  Army	BOARD DATE:  20150417
Separation Date:  20041012

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Cannon Fire Specialist) medically separated for chronic left foot pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) but his profile authorized him to perform an alternate physical fitness test.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “left foot posterior tibial dysfunction” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic pain, left foot status post (s/p) navicular fracture with posterior tibial tendon dysfunction” as unfitting, rated 10%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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.

RATING COMPARISON:

IPEB – Dated 20040827	VA* –  based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Foot S/P Navicular Fracture with Posterior Tibial Tendon Dysfunction	5099-5003	10%	Broken Left Foot	5284	Not Service Connected (NSC)	STR	
Other x 0	Other x 6	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20140716 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation.

Chronic Pain, Left Foot Condition.  The CI sustained a left foot fracture during physical training on 21 September 2003.  He was in a cast for 3 months and performed radio watch during this time.  A left foot X-ray was suspect for either a sub-acute navicular fracture versus a possible avulsion.  The podiatrist noted constant left foot sharp pain for 4 months with physical exam findings of mild tenderness to palpation (TTP) to one-third of the foot and an antalgic gait.  The examiner recommended continuation of a CAM walker boot, orthotics, physical therapy, and an orthopedics consult.  The orthopedist documented TTP at the navicular bone, diagnosed a navicular avulsion fracture and ordered magnetic resonance imagining (MRI).  The MRI showed a questionable fracture of the medial aspect of the navicular bone and an apparent ligament tear of the ankle.  An electromyogram (EMG) demonstrated normal muscles of the left lower extremity and normal motor and sensory nerve conduction studies in the left lower extremity and normal motor and sensory nerve conduction studies.  The CI was given the option of surgical intervention; however, the proposed surgery was challenging and the CI opted for a MEB.  The MEB narrative summary (NARSUM) exam 3 months prior to separation documented that the CI continued to report left foot weakness when walking up stairs or with push off with his left foot; he also has pain and difficulty pushing on his left big toe and pain in the plantar surface [along] with left foot swelling.  The NARSUM physical exam findings included some swelling in the dorsum of the left foot corresponding to big toe weakness, diminished pin prick and touch sensation of the distal third of the left foot, an inability to walk on his toes and heels due to weakness, and TTP around the medial aspect of the left ankle.  The commander’s statement noted left foot pain when performing his MOS and that the CI was unable to deploy. The CI did not show for his VA Compensation and Pension (C&P) exam.

Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The sensory component in this case has no functional implications.  The motor impairment was relatively minor and cannot be linked to significant physical impairment.  The EMG demonstrated normal motor and sensory nerve conduction studies in the left lower extremity.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic pain, left foot s/p navicular fracture with posterior tibial tendon dysfunction as 5099 analogous to 5003 (degenerative arthritis) and rated at 10% with application of the USAPDA pain policy.  The VA coded the broken left foot as 5284 (other foot injuries) and determined it was not service-connected.  The VA chose this rating based on the fact that the CI failed to show for his C&P exam.  All exams proximate to separation documented pain on motion and with all activities.  VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion”; and VASRD §4.59 painful motion provides an alternate justification for a 10% rating.  The left foot condition could not be reasonably rated higher than 10% using any exam proximate to separation or any alternate rating schema.  After due deliberation, considering all of the evidence, and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic pain left 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.  As discussed above, PEB reliance on the USAPDA pain policy (635-40) for rating the chronic pain, left foot s/p navicular fracture with posterior tibial tendon dysfunction was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic pain left foot s/p navicular fracture with posterior tibial tendon dysfunction 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 20140422, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150013452 (PD201401747)

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