RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02101
BRANCH OF SERVICE:  Army	BOARD DATE:  20141022
SEPARATION DATE:  20071108

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV1/E-1 (11B10/Infantryman) medically separated for hammertoe deformity.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The hammertoe condition, characterized as “right foot pain with contractures toes 2-3-4-5, spasm toe #1, and metatarsalgia 2-3” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “hammertoe deformity right foot with hammering evident 2-5 toes” as unfitting rated 10% with application of the VA Schedule for Rating Disabilities (VASRD).  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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting hammertoe condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition 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 20071023	VA* -  Did not have Service Treatment Records (STR) for review	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Hammertoe Deformity Right Foot	5282	10%	Hammertoes, Right Foot, with Great Toe Muscle Spasm and Metatarsalgia	5282	0%	“Failed to Report”	
Other x 0 (Not in Scope)	Other x 3	
Combined/Rating:  10%	Combined:  0%	
*Derived from VA Rating Decision (VARD) dated 20080902 (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’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.

Hammertoe Deformity, Right Foot Condition.  The CI developed right foot pain 12 weeks into basic training in January 2007.  There was no acute injury and he was evaluated with plain film X-ray of the right foot (which were normal) and a bone scan.  The bone scan performed on 22 January 2007 showed stress fracture of distal left and right femurs, left tibia medially and left mid-foot without stress changes of the right foot.  He began exercises for stretching, walking but was not able to run to pass the Army Physical Fitness Test requirement.  On 10 April 2007, the CI was evaluated by a podiatrist who noted contractures of right 2-3-4-5 toes with chronic arthralgia and pain.  X-ray and nuclear medicine scans were normal and he was given orthotics with plantar metatarsal pad.  Re-evaluation weeks later documented pain was down from 4-7/10 to only 2/10; but the CI continued with chronic right foot pain with contractions of the toes that did not resolve in spite of physical therapy efforts to stretch and rehabilitate.  The narrative summary prepared one and a half months prior to separation noted that X-rays on 21 June 2007 of tibia and fibular were negative.  Repeat bone scan performed on 28 June 2007 showed a normal exam with no increased activity.  Electromyography was performed on the right foot and was normal; that ruled out a neurological cause of the contractures; however, the CI continued with efforts to improve in his running, but was unable to progress due to the right foot pain with metatarsalgia and contractures.  The physical exam of the right foot revealed a normal ankle, skin and pulses.  There were contractures of toes 2-5 with “upward drawing of the digits” and moderate to severe tenderness to palpation.  The great toe turned in and down and was minimally tender to palpation.

The CI “failed to report” for the VA Compensation and Pension (C&P) exam scheduled after his discharge from service and the VA did not have any service or private treatment records for review.  He did present for a C&P exam performed 6 years after separation that resulted in a VA rating of 10% for his hammer toes condition effective 13 September 2013.  The CI was given 30 days convalescence and treated with rest and pain management.  Repeat X-rays of each foot and leg were normal on 6 March 2007.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both applied VASRD code 5282 (hammer toe), which is copied below for the reader’s convenience:

5282 Hammer toe:
All toes, unilateral without claw foot ................. 10
Single toes ............................................................ 0

The PEB granted a 10% evaluation (consisted with the highest rating possible under 5282) while the VA initially granted a 0% evaluation because the CI failed to report for the C&P exam and there were no service or private treatment records for the VA to review.  The 0% rating was increased to 10% over 6 years after separation when the CI presented for a C&P examination.  The evidence supports that the CI had hammer toe deformities of toes 2-5 on his right foot with an abnormal great toe also; which is appropriately rated at 10% as granted by the PEB.  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 hammer toe 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 hammer toe 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 2014-02101, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150008210 (PD201402101)

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