RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02205
BRANCH OF SERVICE:  Army	BOARD DATE:  20150127
SEPARATION DATE:  20090510

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Food Services) medically separated for a scar on his left great toe.  The condition did not improve adequately to meet the physical requirements of his Military Occupational Specialty.  The CI was profiled and permitted to take the Army physical fitness test, alternate aerobic portion.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The skin condition (hypertrophic scar) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded four other conditions (see rating comparison chart below), all judged to meet retention standards.  The Informal PEB found the hypertrophic scar on the left foot unfitting and rated it 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The four other conditions were determined 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 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 20090313	VA* - (~3 mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Hypertrophic Scar on Left Foot, at base of the Great Toe	7804	10%	Left Foot, Status Post Bunion Surgery 	5283 	20%	20090819	
			Scar, of the Left Foot	7804	10%		
Right Foot Hallux Valgus 	Not Unfitting	Hallux Valgus and Bunion, Right Foot	5280	10%		
Right Foot Bunion						
Anxiety Disorder		Anxiety Disorder, to include Insomnia	9413	30%		
Right Knee Pain		Chronic Sprain, Right Knee	5257	0%		
Other x 0 	Other x 5	
RATING:  10%	RATING:  60%	
 *Derived from VA Rating Decision (VARD) dated 20090831 (most proximate to date of separation (DOS))
ANALYSIS SUMMARY:

Left foot.  In November 2007, the CI complained of painful bunions on both feet.  In February 2008, he underwent left foot surgery to correct the bunion deformity.  After surgery, he continued to have left foot pain.  He developed a hypertrophic scar at the surgical site.  The CI worked as a cook, and spent much time on his feet.  Due to the chronic nature of the left foot pain, MEB was initiated.  The narrative summary exam was in November 2008.  The CI reported pain with wearing military footgear, and was unable to run or participate in strenuous physical activity.  Physical examination (PE) of the left foot revealed a hypertrophic scar which was tender to palpation.  There was decreased range-of-motion (ROM) at the first metatarso-phalangeal (MTP) joint, but this was not severe.  There was no pain with motion of the first MTP joint.  Neurovascular exam was unremarkable.  On 29 January 2009, the CI was evaluated by physical therapy.  The CI’s gait was normal, and there was no outward appearance of pain with walking.  Left great toe MTP active flexion was 30 degrees, and active extension was 45 degrees.  

The CI was medically separated from service on 10 May 2009.  In August 2009, 3 months later, a VA Compensation and Pension exam was performed.  The CI complained of constant pain in both feet.  He reported that he was able to walk for a mile and stand for 15 minutes.  Gait was normal.  On PE of the left foot, the surgical scar was not elevated, but was moderately tender to touch.  The scar did not limit motion, and did not affect activities of daily living.  PE of the left great toe revealed objective evidence of pain when an attempt was made to move the first MTP joint.  The joint was stiff, and practically had no motion at all.  Vascular status of the left great toe was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The Board noted the disparity between the examinations above.  The first MTP joint, at the base of the left great toe, clearly got worse during the period from January 2009 to August 2009.  Flexion went from 30 degrees to almost 0, and extension went from 45 degrees to almost 0.  The Army PEB and the VA chose identical coding and rating options for the skin condition (surgical scar on left foot).  However, the VA also coded and rated an orthopedic condition (status post bunion surgery, with painful 1st metatarsal bone, and painful 1st MTP joint).  It was coded as 5283 (tarsal or metatarsal bones, malunion or nonunion of), and was rated 20% (moderately severe).  The combined VA rating for the left foot condition was 30%.  The Board spent considerable time discussing whether or not it was appropriate to code and rate an orthopedic condition, in addition to the unfitting skin condition.  there was sufficient evidence of duty impairment from the orthopedic condition (1st MTP joint, resection that led to the scar) for it to be considered an additionally unfitting condition and separately rated.  The Board discussed the CI’s symptoms, duty limitations and the provisions of VASRD §4.14 (Avoidance of pyramiding).  

After due deliberation, the Board consensus was that it was not appropriate to code and rate an orthopedic condition, in addition to the unfitting skin condition.  The Board determined that the pain and limitation of motion at the 1st MTP joint, was not separately unfitting, and any pain was appropriately considered under the rating of the scar condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the painful left foot condition.

Other PEB Conditions.  The Army PEB adjudicated the right hallux abductovalgus deformity, right foot bunion, anxiety disorder, and right knee pain as not unfitting.  The Board’s main charge with respect to these other conditions is to assess the appropriateness of the PEB’s fitness adjudication.  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.  These four conditions were thoroughly reviewed by the action officer and considered by the Board.  The Board determined that none of these conditions were specifically profiled, implicated in the commander’s statement, or judged to fail retention standards.  There was no indication from the record that any of these conditions, separately considered, significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination.  Therefore, 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 hypertrophic scar on left foot, and IAW VASRD §4.118, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right hallux abductovalgus deformity, right foot bunion, anxiety disorder, and right knee pain, 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140508, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX, AR20150015584 (PD201402205)

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