RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02857
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20031127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Patient Administrative Specialist) medically separated for chronic left foot and ankle pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “chronic left foot/ankle pain” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions as meeting retention standards.  The Informal PEB adjudicated the chronic left foot and ankle pain as unfitting, rated 10% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining 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 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:    

 IPEB - Dated 20030918	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Foot and Ankle Pain	5099-5003	10%	Complex Regional Pain Syndrome of Left Foot	5284	10%	20040325	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	30%	20040325	
Back Pain	Not Unfitting	No VA Entry	
Endometriosis	Not Unfitting	No VA Entry	
Cystic Ovary Disease	Not Unfitting	No VA Entry	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20040513 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Chronic Left Foot and Ankle Pain.  The CI injured her left foot in August 2001 after being struck with a mallet during training.  X-rays obtained in the emergency room were reported as negative.  Initially, she was treated conservatively with alternate footwear, crutches, immobilization, and local injections.  Despite such interventions, she continued to experience swelling and pain to her left foot.  She was permanently profiled in June 2003 with the listed diagnosis of “chronic left foot ankle pain” and referred to a MEB.  At the MEB narrative summary examination performed on 11 August 2003 (4 months prior to separation), the CI endorsed constant pain on the top of her left foot.  She reported the inability to run, jump, stand for prolonged periods of time, march, or anything that requires prolonged periods of weight bearing.  She denied numbness or tingling in her foot.  The physical examination (PE) revealed a slight left-sided antalgic gait.  There was tenderness over the top and outer aspect of her left foot.  There were no abnormal findings about the left ankle, forefoot, or heel except for a minimal decrease in ankle dorsiflexion measured at 15 degrees (normal is 20 degrees).  Distal sensation was intact.  

At the VA Compensation and Pension (C&P) examination performed on 25 March 2004 (4 months after separation), the CI reported left foot pain described as aching and stiffness which occurs across the top of her mid-foot and is worse in the morning and with cold damp weather.  Her PE revealed a normal gait.  There was tenderness in the middle and outer portions of the left foot.  Ankle ROM was normal.  She maintained the ability to perform various heel and toe stances without significant discomfort.       

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) cited “rated for pain, slight and frequent.”  The VA also rated 10% utilizing VASRD code 5284 (foot injury, other) for “moderate” impairment.  Board members first deliberated and agreed that although the PEB appeared to combine a foot and ankle condition, the recorded evidence does not support the ankle as being a separately unfitting condition and thus not eligible for a separate impairment rating.   Members then agreed with the VA’s primary use of code 5284 for the left foot condition based upon the mechanism of injury in this particular case and further agreed that the PE evidence at both exams 4 months pre and post separation did not support impairment at the “moderately severe” (20%) level.  There are no other available alternate foot codes available to benefit the CI’s current 10% rating.  Although noting the VA’s code was more descriptive of the CI’s condition, the rating was equivalent to the current PEB rating of 10%.  Members agreed that changing the code without a change in rating was not necessary.  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 migraine headaches, back pain, endometriosis, and cystic ovary disease were 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.  All the above conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions 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 any of the contended conditions 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.  As discussed above, PEB reliance on the USAPDA pain policy AR 635-40 DoDI 1332.39 for rating the left foot was operant in this case and the condition was adjudicated independently of that policy/ instruction by this Board.  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 migraine headaches, back pain, endometriosis, and cystic ovary disease conditions, the Board unanimously recommends no change from the PEB determinations 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 20140530, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	
SAMR-RB	0 6 JUL 2016

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, AR20160003169  (PD-2014-02857)

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 1o, 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: