RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02992
BRANCH OF SERVICE:  Army	BOARD DATE:  20150429
SEPARATION DATE:  20040709

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Infantry) medically separated for left foot condition.  This condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for an Medical Evaluation Board (MEB).  Continued pain of the left foot was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic pain, left foot as unfitting, rated 0%, with cited application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “Please consider all medical records.  I believe that my case was rushed and was told by the doctor himself that my condition would only get worse over time.  I have problems walking and sharp pains that travel up my spine due to the surgeries I’ve had.  My left calve is deformed due to the surgery and work.  It has caused a great deal of problems in my knees, lower back and R hip.  My herniated disk L5S1 is always in pain due to my favoring my right side.  My R hip is locking up on me along with both knees.  I strongly believe my case was rushed through.  I have tinnitus and have had a surgery in my R ear due to a cholesteatoma which I was told was caused by constant loud noise.  My last job in the Army was anti-armor leader course instructor, and fired extremely loud weapons.  I feel that is what caused my inner ear problem and was over looked.  I am in constant pain on my feet and my left foot with 4 screws goes numb constantly and when the feeling come back it’s intensified.  Please consider all evidence and I appreciate your time.  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 condition 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 IPEB – Dated 20040419	VA* - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Foot	5099-5003	0%	Left Foot & Ankle Fracture with Residual Pain	5271-5284	20%	20040309	
Other x 0 (Not in Scope)	Other x 2	
Combined:  0%	Combined:  20%	
*Derived from VA Rating Decision (VARD) dated 20040816 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Left Foot.  On 25 June 2001, the CI was evaluated in Primary Care for a 3-week history of left ankle pain after twisting it during a field exercise.  X-rays showed an avulsion fracture (one caused by a piece of bone being pulled away with a ligament, typically in an inversion injury {ankle sprain}).  He was treated with a cast, but his symptoms persisted.  A bone scan on 6 August 2001 was consistent with cartilage damage.  He had surgery on 3 October 2001.  The record then falls silent until 28 March 2003 when he reported to Primary Care, an 18-month history of ankle pain.  An MRI on 13 May 2003 was unremarkable.  He was noted to have residual deformity of the foot and a second operation was performed on 1 July 2003 to correct this.  Post-operatively, he did well other than a separation of the incision.  Despite rehabilitation, his pain continued and he was not able to return to full duty.

The MEB narrative summary (NARSUM) was dated 15 March 2004 and was based on an examination done on 12 January 2004, approximately 6 months before separation.  The CI reported continued pain aggravated by activity and directly related to the level of activity.  The scars were well healed.  The CI was tender over the ankle and heel.  Some atrophy was present.  The previous deformity had been corrected and his stance was normal.  The range-of-motion (ROM) was normal although one maneuver, inversion, was painful and this limited testing for strength.  The motor examination was otherwise normal.  Good alignment was present on X-ray examination.  Gait was not recorded.  The CI was thought to not meet retention standards secondary to persistent pain.

At the VA Compensation and Pension (C&P) examination dated 9 March 2004, approximately 4 months before separation, the CI reported that he had lost time from work twice the past year.  On examination, the gait and posture were normal.  Motion was painful and the foot was tender.  There were no limitations in standing or walking and no type of support was used.  X-rays documented expected post-operative changes.  The ROM was reported as 20 degrees of flexion (plantar flexion) and 40 degrees of dorsiflexion.  The Board noted that it was the reverse of the expected values.  This reduces the probative value of these measurements and they were not used for rating purposes.  However, this had no impact on the recommendation.

Following separation, a mental health examination on 10 May 2005 documented that the CI had lost no time from work the prior 12 months.  A joint examination on 17 June 2005, over 11 months after separation, documented a slight limp, but normal posture.  Shoe wear was normal.  The ROM was reduced as documented below.  The CI was able to rise on his heels and toes; toe and heel walk; and, stand on one foot although with mild discomfort.  The scars were well heeled and non-tender.  X-rays showed some degenerative changes with stable hardware placement.  

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Ankle ROM
(Degrees)	NARSUM ~6 Mo. Pre-Sep	VA C&P ~11 Mo. Post-Sep	
Dorsiflexion (20 Normal)	20	10	
Plantar Flexion (45)	55	35	
Comment	Normal ROM	Slight limp	
§4.71a Rating	0% 	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the ankle at 0% using the analogous code 5099-5003 (degenerative arthritis) citing the pain policy.  The VA rated the ankle at 20% and used the dual codes 5271 (limited motion of the ankle) and 5284 (other foot injuries).  The Board considered the disability to be most consistent with mild to moderate disability at the time of separation and that a 10% rating is supported by painful, limited motion.  The Board found no route to a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left foot condition, coded 5271.

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 for rating the left foot condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic left foot pain condition, the Board unanimously recommends a disability rating of 10%, coded 5271, IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Pain, Left Foot	5271	10%	
COMBINED	10%	

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										

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 XXXXXXXXXXXXXXXXXX, AR20150018728 (PD2014-02992)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA