RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02185
BRANCH OF SERVICE:  Army	BOARD DATE:  20140805
SEPARATION DATE:  20041216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantry) medically separated for chronic right foot pain condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) but he could perform an alternate physical fitness test.  He was issued a permanent U2L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic right foot pain and the chronic right shoulder instability condition were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic pain in the right foot” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB determined the right shoulder instability to be not unfitting.  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 right foot condition is addressed below as well as the contended right shoulder; 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 20041022	VA - (1 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Foot Pain	5279	0%	Residuals of Fracture, Right Foot	5284	0%	20041112	
Chronic Right Shoulder Instability	Not Unfitting	Right Shoulder Condition	5299-5203	NSC	
Other x 0 (Not in Scope)	Other x 4	
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20041228 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Foot Pain Condition.  The MEB narrative summary (NARSUM) noted the CI, in June 2003, developed right foot pain during Ranger School.  Initially diagnosed as right foot stress fracture, his right foot pain persisted.  In August 2003 radiographs of the right foot revealed a healed third metatarsal mid-shaft fracture.  The CI was treated conservatively with ice and pain medications.  Treatment entry dated 25 August 2003, noted the report of improvement, although he continued to have dull pain upon inversion and eversion of the right foot.  The CI noted normal walking activity was fine.  His gait was normal and there was no evidence of edema or infection.  There was pain on palpation.  His profile included no running and his right foot pain persisted.  In September 2003, he was able to deploy to Iraq where he continued to perform his duties with continued right foot pain and limited activity.  The Post-Deployment Health Assessment prepared on 29 February 2004, recorded that the CI indicated his health stayed about the same or had improved, and he was not seen in sick call during deployment.  On 23 March 2004, a primary care clinic treatment entry recorded the report of increased pain with weight bearing, running, “etc.”  There was tenderness noted on palpation.  Pain was the single recorded complaint.  On 21 June 2004, magnetic resonance imaging (MRI) demonstrated an intact third metatarsal with normal alignment.  The MRI indicated “probable healing stress fracture of the right third metatarsal bone,” with no evidence of complication, no significant joint effusion or soft tissue edema.  It was determined that the CI could no longer meet retention standards and he was referred to the MEB.

In the NARSUM, written 6 August 2004, the CI reported right foot pain and a history of right shoulder dislocation.  He noted that over the course of 16 months since his foot pain began, his physical conditioning had not improved.  He also reported intermittent right shoulder dislocation and indicated a prior history of right shoulder subluxation at the age of 14.  The physician noted the CI had been seen by orthopedics while deployed and was given the recommendation to continue conservative management.  At the time of the NARSUM, the CI noted he continued to have right foot pain described as a constant throbbing pain of intensity level 9/10, and with limitations of activity and pain medications, the pain level reduced to 3/10.  The examiner referenced the MEB history and physical (H&P) for results of clinical findings.  The H&P, dated 6 August 2004, recorded “slight sensitivity” over the right third metatarsal, a normal arch and no weakness of the foot.  The diagnoses of chronic right foot pain and chronic right shoulder instability were recorded.  The profile allowed unlimited biking, swimming, upper and lower body weight training, and carrying a weapon.  The CI could not move at least 2 miles with a fighting load, or construct a fighting position.  At the VA Compensation and Pension (C&P) exam on 12 November 2004, approximately a month prior to separation, the CI indicated he had continued the use of Dilaudid which he took at least three times a day.  Physical examination noted the CI had a normal gait and normal coordination.  The right foot was normal in appearance, and there was no evidence of inflammation, instability or weakness.  There were no calluses and no deviation of the first toe.  Movement was not compromised.  Additionally, there was no disturbance in sensory or vascular functioning.  The physician recorded status post stress fracture of third metatarsal, however, he also noted there was no current pathology to render a diagnosis.  The physician evaluated the complaint of bilateral knee pain and right shoulder subluxation, and determined that there was no evidence of pathology to render diagnoses, i.e., range-of-motion and physical examination were normal in both conditions.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition under the 5279 code (Metatarsalgia, unilateral/bilateral) with a 0% disability rating.  The VA did not service-connect the right foot condition and therefore, did not rate it.  The Board noted where the VA rating schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met (§4.31).   The coding option 5279 does not allow for a higher than the minimum compensatory rating.  The PEB noted the condition of chronic pain that was constant and throbbing at an intensity of 3-9/10 and partially relieved with rest and opioid medications.  The clinical records described normal gait, normal sensation and no motor weakness.  The Board noted the only physical finding on all examinations was tenderness to palpation.  All Board members agreed there was insufficient evidence supporting a compensable evaluation under the 5279 code.  The Board considered code 5276; however, there was no evidence of callouses or marked deformity or pain on manipulation of the feet.  Code 5277 was not applicable since there was no evidence of muscle atrophy, disturbed circulation, or weakness.  The Board deliberated the application of § 4.59 and §4.40 and agreed the condition was not compensable under either provision since the record in evidence demonstrated no loss of function and no evidence of painful motion resulting in functional impairment.  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 right foot pain condition.

Contended Right Shoulder Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the chronic right shoulder instability condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board acknowledged the right shoulder condition was profiled; however, there were no specific limitations related to the condition.  The MEB NARSUM noted the condition had been present since childhood and there were no clinical findings recorded at the NARSUM.  The C&P examination of the right shoulder, a month prior to separation, recorded normal ROMs, absence of shoulder pain, weakness, and fatigue.  The examiner noted absence of identifiable pathology to support a diagnosis.  The right shoulder condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that this 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’s fitness determination for the right shoulder subluxation condition and so no additional disability ratings are 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.  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 chronic pain in the right foot condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right shoulder instability condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140515, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150006397 (PD201402185)

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