PRECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03582
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091222

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Health Care Specialist, medically separated for “hallux valgus, bilateral,” rated 10% for her right foot and 10% for her left foot, with a combined  disability rating of 20%.

CI CONTENTION:  She did not receive her final examination due to pregnancy and she’s being treated for acne.  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 based upon a 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 - 20090908	VARD - 20100127	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Hallux Valgus, Bilateral	5280	20%	Left Foot Metatarsalgia, Status Post Bunionectomy	5280-5284	10%	STR	
			Right Foot Metatarsalgia, Status Post Bunionectomy	5280-5284	10%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Hallux Valgus, Bilateral.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s hallux valgus, bilateral condition began in July 2006 during deployment to Iraq.  She was evaluated in Podiatry clinic and bunions were diagnosed.  In January 2008 she had a bunionectomy on the first and fifth right metatarsals and in October 2008 had the same procedure on the left first metatarsal.  The CI denied any specific trauma or injury.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “bilateral metatarsalgia status post Bunionectomy” for PEB adjudication.  

The MEB NARSUM examination on 30 June 2009, 6 months prior to separation, noted complaints of persisting foot pain although the surgeries were successful.  The pain was especially present when attempting to push off.  Orthotics had not been beneficial.  She currently had 4/10 pain on both feet.  She was unable to run or march for a prolonged period to the pain.  She indicated the pain was present at the first metatarsal bilaterally and under the right fifth metatarsal.  Physical examination showed marked tenderness over the left first metatarsal head and none on the right metatarsal.  She reported the left foot was hurting far more than the right foot.  There was no evidence of swelling or color changes on either foot.  She had normal range of motion of the ankle with no pain or discomfort.  Vascular examination was normal bilaterally.  Foot range of motion (ROM) showed right metatarsophalangeal joint dorsiflexion of 45 degrees, plantar flexion 19 degrees while left metatarsophalangeal joint dorsiflexion was 42 degrees and plantar flexion was 11 degrees. There was no indication for any further surgery.  Radiographic (X-ray) studies of the left foot showed persistent mild soft tissue swelling in the medial aspect of the first metatarsophalangeal joint and stable subtle cortical thickening involving the medial aspect of the second metatarsal shaft, possibly related to stress induced change.  There was no VA C&P examination in evidence. 

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the hallux valgus, bilateral condition 20%, coded 5280 (hallux valgus, unilateral), citing tenderness of the first metatarsal heads bilaterally and under the fifth metatarsal of the right foot.  The VA rated the right and left foot metatarsalgia, post-bunionectomy conditions 10% each, coded 5284 (foot injuries, moderate), based on service treatment records. The 20% rating  represents 10% for each foot, based on the operation on each foot involving the metatarsal head.  

The Board considered whether there was a pathway to a higher rating for the right and left foot conditions.  Members noted the CI report that pain was much greater in the left foot than the right foot and that on physical examination there was marked tenderness over the left first metatarsal head and none on the right metatarsal.  There was X-ray evidence of more pronounced pathology in the left foot suggestive of stress fracture in the metatarsals.  In consideration of the 5280-5284 coding, the Board majority agreed that the left foot hallux-valgus condition was moderately severe and the right foot hallux-valgus condition was moderate.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the left foot condition, coded 5280-5284 and 10% for the right foot condition.  

BOARD FINDINGS:  In the matter of the bilateral hallux valgus condition, the Board recommends by majority a disability rating of 20%, coded 5280 IAW VASRD §4.71a.  The minority voter submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Foot Metatarsalgia, Status Post Bunionectomy	5280-5284	20%	
Right Foot Metatarsalgia, Status Post Bunionectomy	5280-5284	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140730, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

MINORITY OPINION:  The minority dissent with the majority recommendation was based on the totality of the evidence in the service treatment record for the bilateral hallux valgus condition.  The PEB’s separate 10% ratings for each foot under code 5280, which is quite specific for the condition under consideration, were very consistent with that evidence and with VASRD §4.71a.  The maximum achievable rating under 5280 is 10%.  Although employing a hyphenated code for hallux valgus and code 5284 (the majority code choice to support a higher rating), the VA arrived at the same 10% rating for each foot condition.

The majority concluded that rating under a code different than the one specifically prescribed by the VASRD was justified by the degree of disability.  The majority referenced greater pain on the left, “marked tenderness,” and “more pronounced pathology” as a justification for assigning moderately severe disability to the left foot as opposed to moderate disability to the right foot.  The minority voter asserts that disability should be assessed by functional limitations.  The CI had a normal gait and the only limitations referenced in the NARSUM were more rigorous soldiering requirements.  The MEB NARSUM stated in fact, “The soldier can be employed in multiple occupations that do not require prolonged periods of standing, running, or jumping.  The soldier states that if she was discharged from the military she would like to return to school to become a paramedic.”  The commander’s performance statement cited a 10-14 hour work day with “superb and outstanding” MOS performance.  The post-separation evidence confirmed that the CI was indeed able to accomplish her above career goal, corroborating the NARSUM opinion, and with no additional evidence of feet examinations or requests for additional VA compensation for her feet condition.  

The minority voter is of the firm opinion that the functional evidence is not consistent with moderately severe disability, whether or not arbitrarily assigned to only one foot, and especially considering that the above overall disability is spread between two ratings.  Furthermore the minority voter is of the opinions that VASRD §4.7 (higher of two evaluations) does not offer the latitude to resort to a more favorable code when a more specific code provides a reasonable rating option; and, that the analogous coding route on which the majority rests its recommendation is of equivocal compliance with VASRD §4.20 (analogous ratings).

The totality of the evidence provided ample support for a conclusion that the PEB’s adjudication of the unfitting bilateral hallux valgus condition was reasonable and fair, and consistent with the VA rating decision.  

The Secretary is respectfully requested to consider the minority recommendation that there be no re-characterization of the CI’s service disability determination. 

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 XXXXXXXXXXXXXXXXXXXXX, AR20160017551 (PD201403582)

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 reject the Board’s recommendation and accept the Board’s minority opinion as
accurate that the applicant’s final Physical Evaluation Board disability rating remains
unchanged. There is insufficient justification to support the Board’s recommendation in
accordance with Army and Department of Defense regulations.

2. 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.

Enclosures
CF:
( ) DoD PDBR
( ) DVA