RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02606
BRANCH OF SERVICE:  AIR FORCE 	SEPARATION DATE:  20080707

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a traditional drilling National Guard, E4, Security Forces Apprentice, medically separated for “right foot pain status post gunshot wound [GSW],” with a disability rating of 20%.  

CI CONTENTION:  The applicant simply listed “Rt Foot.”   The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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:  

SERVICE PEB - 20080602	VARD - 20080917	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Foot Pain with Loss of Sensation to 3d and 5th Toes, s/p GSW	8524	20%	S/P Right Open Fracture 4th Metatarsal Bone due to GSW	5299-5284	30%	20080910	
			Right Foot Scar	7804	10%	20080910	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Right Foot.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented onset of the condition with a GSW in August 2004 (nearly 4 years prior to separation) resulting from an accidental discharge during qualification training (9 millimeter, low velocity).  The injury consisted of an open fracture of the distal fourth metatarsal which was surgically addressed the day of injury.  There were no complications and the initial clinical course was promising for a full recovery.  Follow-up X-rays demonstrated a well healed fracture and normal alignment.  The STR reflects, however, that over the ensuing years the CI never resumed full duties; and, the commander’s performance statement indicates a protracted period of missed drills.  An MEB was initiated in April 2006 (21 months prior to separation).  Outpatient STR clinical entries provided little specific functional or VASRD rating evidence, and there was no documentation of any periods of incapacitation after surgical recovery.  The initial NARSUM (date not in evidence) documented “right foot pain 80-85% of the time” associated with numbness, interfering with driving and protracted sitting or standing.  The NARSUM physical examination recorded the use of a cane for ambulation, a well healed scar (dorsal forefoot), tenderness, no note of deformity or malalignment, and a sensory deficit of the “3rd to 5th toes.”  Ankle range of motion (ROM) was reported as dorsiflexion to 5 degrees (normal 20) and plantar flexion to 40 degrees (normal 45).  

An addendum to the NARSUM attached a functional capacity evaluation (FCE) from 28 January 2008 (5 months prior to separation).  This noted that the CI “does not use a cane during ambulation,” a mild gait disturbance, but normal posture and a 30-minute walking tolerance.  It further noted that he was driving with a requirement to rest after an hour.  Goniometric ROM measurements for the ankle, foot, and all digits were normal.  Overall the CI was placed in a “medium work category for an 8-hour day.”  

A VA Compensation and Pension (C&P) examination was conducted 10 September 2008 (2 months after separation).  The examiner noted constant pain with subjective weakness, and, there was no documentation of interim injury or other exacerbation of the condition.  The reported functional limitations were “cannot drive ... unable to stand for more than a few minutes ... walk more than a few yards”; although, it was noted that the CI was a full time student.  The VA physical examination recorded the use of a cane for ambulation and tenderness; but, specified the absence of objective weakness, painful motion, and all VASRD ratable foot deformities and diagnoses.  The VA measured ankle ROM was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB conferred its 20% rating under the tibial nerve code 8524 which is anatomically accurate for the pain and sensory findings.  A 20% rating is for “moderate” impairment under 8524 and the higher 30% rating is for “severe” impairment.  The VA’s 30% rating under analogous 5284 (foot injuries, other) was for “severe” disability and the highest allowable for the code (barring loss of use of the foot).  The VA rater specifically cited the need for a cane and the severe functional limitations as reported to the C&P examiner.  There was no ROM limitation or other ratable features in evidence which would support a rating higher than 20% for any ankle or foot code available under VASRD §4.71a.  Members deliberated if the 30% rating under 5299-5284, as conferred by the VA, was supported by the totality of the evidence.  Specifically the evidence from the prior to separation FCE was in stark contrast with the reported history in the C&P, and there was not a satisfactory clinical explanation for the worsening of the condition as reflected in the C&P.  Furthermore it was noted that the objective functioning (fulltime student) and the objective physical findings by the C&P examiner were not correlated with the reported disability on which the VA rater relied.  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 of the right foot condition.  

BOARD FINDINGS:  In the matter of the right foot condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  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 20140228, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MR
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-02606.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings