RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02798
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071114

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantry) medically separated for “left bunion post osteotomy.” rated at 10%.  

CI CONTENTION:  He was not evaluated for his anxiety and depression conditions.  His complete submission is at Exhibit A.

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 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 20070806	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Bunion	5299-5280	10%	Hallux Abductovalgus w/Residual Pain…	5299-5280	10%	20080206	
Hallux Valgus, Right Foot	Not Unfitting	Hallux Abductovalgus Right Great Toe w/Bunion Deformity…	5299-5280	10%	20080206	
Other Conditions x 0 (Not in Scope)	Other X 3 	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20081202 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Left Hallux Valgus (HV) Condition.  The narrative summary (NARSUM) noted that in the summer of 2006 the CI developed left foot pain aggravated by weight bearing activities and military footwear.  Left foot X-rays on 11 July and 14 November 2006 noted hallux valgus (HV) of the left foot (also referred to as a bunion) without evidence of fracture or degenerative changes and metatarsus primus varus (static foot deformity with the forefoot rotated so that the plantar surface of the foot faces the midline of the body.)  Notes in the service treatment record (STR) indicated the podiatrist diagnosed painful HV.  Despite conservative treatment, the foot pain continued and the CI underwent surgery for correction of the left hallux valgus deformity on 1 February 2007.  Left foot X-rays after surgery noted the surgical changes and hardware with “near anatomic” alignment of the bones of the great toe (GT) (first metatarsal (MT) and proximal phalanx).  The CI reported improvement following the surgery noting he was able to wear shoes or boots that were broken in, however he continued to report pain with marching, running, or fast walking.  

At the MEB exam on 16 May 2007, 6 months before separation, the CI reported left foot pain.  The MEB physical exam noted normal foot arches.  There was evidence of abnormal weight bearing on the left foot.  There was normal sensation of the GT, with absent sensation in the web space between the first and second toes (localized area of sensory disturbance related to the surgery).  Dorsiflexion (DF) of the first metatarsal-phalangeal joint (MTPJ) was limited (`slight’) There was soreness in the area of the MTPJ and ROM was painful.  The interphalangeal joint (IPJ) DF was also slightly limited, with normal flexion.  There was normal ROM of all other toes.  The examiner noted that the left HV deformity has “been corrected.”

The VA Compensation and Pension (C&P) General exam 6 February 2008, 3 months after separation, noted a smooth, steady gait and the CI reported use of no medications.  A stable scar was noted over the first metatarsal (MT) and GT which did not cause any functional limitations.  At the VA C&P exam of the feet the same day, the CI reported left foot pain that began during basic training and shoe inserts provided by the military were helpful.  He reported that following the 2007 surgery he had residual symptoms of sharp pain in the left first MT with standing or walking and flare-ups that required him to sit down.  The CI reported that he was starting a job doing landscaping work and had “lost no time from work because of his feet.”  The exam noted HV deformity of the GT and a static hammertoe deformity (flexion of the proximal interphalangeal joint) of the rest of the toes.  The examiner indicated the CI did not have pes planus.  The MTPJ ROM was noted to be “somewhat limited”, with DF of 5 degrees.  There was TTP of the first MT and the first MTPJ, but no TTP of the arches or heel.  The examiner noted the CI ambulated with his foot “inverted to help limit pressure over the bunion deformity of the great toe.”  There were callouses of the bottom of the forefoot.  Left foot X-rays noted the post-surgical changes with intact hardware and hammertoe deformity of the lesser toes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and the VA both rated the left HV condition 10%, coded 5299-5280 (analogous to HV).  The Board agreed that the CI met the 10% rating for unilateral hallux valgus after surgery, and noted 10% is the only rating available with this code.  The Board reviewed to see if a higher rating was achieved with any other applicable code.  However, there was no evidence of acquired flatfoot; acquired clawfoot; or, malunion or nonunion of a metatarsal or tarsal bone to support a higher rating than 10%.  The Board also considered if coding the foot condition as 5284 (other foot injury), which has subjective rating criteria of 10% for ‘moderate,’ 20% for ‘moderately severe’ and 30% for ‘severe’ foot injury would result in a higher rating.  Member consensus was that the disability due to the HV deformity status post surgery was best characterized as ‘moderate’ and not ‘moderately severe’ proximate to separation based upon the CI’s improved ability to wear footwear, including some boots, and no foot pain at rest noted at the MEB exam and the findings at the C&P exams shortly after separation of no medication use or lost work time and a normal gait.  Thus, coding as 5284 provided no ratings benefit over 5280.  The Board determined that the evidence in record supports a 10% rating for the left foot condition and no higher, including with consideration of functional loss.  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 left foot condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right foot HV condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Bilateral foot X-rays 14 November 2006 indicated the CI had a HV deformity of both feet.  Notes in the STR indicated the CI was primarily seen and treated for the left foot pain, but at the MEB evaluations the CI reported pain in both feet.  Bilateral hallux valgus condition was listed on temporary profiles and an earlier permanent profile dated 16 May 2007 noted “chronic left foot pain post bunion surgery. Bunion deformity R foot.”  The NARSUM notes that the CI had begun to have pain in the right foot, but the “right foot symptoms do not restrict his activities.”  The NARSUM and the MEB noted the right foot condition was medically acceptable.  The permanent profile and the commander’s statement noted only the left foot condition. 

The Board noted that the right bunion was listed on temporary profiles and one permanent, profile but the right foot HV condition was not noted on the final permanent profile or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed and considered by the Board.  The CI did not report or receive treatment for right foot symptoms prior to his referral for an MEB for the left foot condition.  There was no performance based evidence from the record that the right foot 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 fitness determination for the right foot condition and so no additional disability rating is 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 left foot condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right foot 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.  

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 20140613, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXX, AR20160004016 (PD201402798)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA