RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-03010
BRANCH OF SERVICE:  Army	 SEPARATION DATE:  20090720

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Combat Medic) medically separated for chronic right foot pain, rated at 10%.

CI CONTENTION:  The applicant makes no specific contention in his application.  His 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 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 20090508	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Foot Pain	5284	10%	Residual, Fracture Right 4th Metatarsal	5283	0%	STR	
Dyspepsia	Not Unfitting	Esophageal Reflux	7346	NSC	STR	
Other MEB/PEB Conditions x 0	Other x 2	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20100201 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Chronic Right Foot Pain.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s right foot condition began in November 2007 after an injury.  Radiographic studies showed a right fourth metatarsal fracture (long bone second in from outside of foot).  There was a prolonged course of healing with multiple non-surgical modalities.  The CI developed chronic foot pain and there were no surgical indications.  An X-ray in July 2008 showed a healed fourth metatarsal fracture and bone scan in November 2008 was essentially normal.
The MEB NARSUM and addendum noted the CI’s prolonged treatment course including use of narcotic pain medications, bone stimulator, injections, physical therapy, civilian pain specialty treatment and a trial of an external spinal stimulator to manage the CI’s foot pain with limited success.  Implanted spine stimulator was projected by the civilian specialists.  At the MEB examination dated 17 February 2009 (5 months prior to separation) the CI reported pain with prolonged walking or standing and “intolerance of any increased activity.”  Physical exam showed moderate tenderness to palpation over the distal right fourth metatarsal, distal right third metatarsal, and the associated soft tissues between these bones.  There were no skin changes or temperature changes noted.  Sensation, strength and reflexes in the lower extremities were normal and symmetric.  “The (CI) was able to walk on his heels and perform straight line walking, but reported intolerable right lateral foot pain with attempting to walk on his toes.”  The NARSUM addendum dated 3 April 2009 discussed the CI’s medication use and prognosis with projected implanted spine stimulator, as well as diagnostic variance from the “diagnosis of Regional Sympathetic Dystrophy / Complex Regional Pain Syndrome in his civilian pain management medical records” (citing lack of non-pain changes in the foot) to a diagnosis of chronic right foot pain.  The CI failed to report to his scheduled VA Compensation and Pension (C&P) examination.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition 10% (coded 5284; Foot injuries, other), citing inability to toe walk due to pain and a moderate foot injury.  The VA rated the right foot condition 0% (coded 5283; Tarsal, or metatarsal bones, malunion of, or nonunion), citing insufficient evidence of moderate impairment and a missed VA exam.  The Board deliberated on the level of foot injury severity under either code 5284 or 5283 between “moderate” (10%), “moderately severe” (20%) and “severe” (30%).  The CI’s disability level did not approach “loss of use” of the foot.  The Board also considered alternate or additional rating of the foot pain under analogous coding to 8625, neuritis of the posterior tibial nerve; however, there was insufficient evidence of any organic changes for any rating above that was awarded by the PEB for the pain condition.  There was no muscle injury, no open fracture, no skin or soft tissue changes and no fixed sensory or motor deficits.  The Board adjudged that there a rating above “moderate” under either 5284 or 5283 was not supported by the evidence.  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 right foot condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that dyspepsia 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.  The dyspepsia was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that dyspepsia 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 contended dyspepsia condition 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.  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 right foot condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended dyspepsia condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 20140624, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-00), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXXXX AR20160005001 (PD201403010)

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