RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03706
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070729

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Health Care Specialist, medically separated for “bilateral foot pain,” with a disability rating of 10%.

CI CONTENTION:  “Please consider all conditions.”  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 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 PEB - 20070426	VARD - 20071022	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Foot Pain…	5279	10%	Bilateral Pes Cavus	5278	10%	20070910	
			Hallux Abductus Valgus, Left Foot Hammertoes Deformities, Second Through Fifth Digits	5282	10%	20070910	
			Hallux Abductus Valgus, Right Foot Hammertoes Deformities, Second Through Fifth Digits	5282	10%	20070910	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Bilateral Foot Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM) dated 27 March 2007, the CI developed bilateral foot pain during a 12-mile road march in December 2002.  During deployment, the pain decreased with orthotics and no marching.  In December 2004, a podiatrist assessed the CI’s condition as metatarsalgia with flexible hammer toes.  Evaluation in August 2005 revealed left claw toe deformities, hallux valgus bunion deformity, cavus foot (high arch), a tailor’s bunion, and metatarsalgia.  On 9 September 2005, the CI underwent a left foot double osteotomy, apicostomy (removal of periosteum surrounding the bone), and bunionectomy with arthroplasty (to restore joint function) involving all five toes of the left foot.  On 11 July 2006, surgery on the right foot consisted of a double osteotomy of the right first ray and a 5th metatarsal osteotomy, bunionectomies, and arthroplasty of all five toes.  Despite frequent evaluations and physical therapy, the CI experienced constant bilateral foot pain and decreased physical functioning.  

At the MEB examination (recorded on DD Forms 2807 and 2808), dated 23 March 2007 and 4 months prior to separation, the CI reported bursitis of the feet bilaterally.  He also reported foot surgeries for the left and right feet consisting of bunionectomies and hammer toe repairs.  The medical examiner’s right foot findings included a 5cm surgical scar on the great toe with pain on flexion, 3cm surgical scars on the 2nd, 3rd, and 4th toes, and a 3cm little toe surgical scar tender to pressure.  The toes were swollen, deep red-blue, and painful with flexion and extension; and the CI was unable to flex against resistance.   The left foot great toe had a 5cm surgical scar with minimal pain with flexion and extension (able to flex against resistance).  The 2nd, 3rd, and 4th toes had 3cm surgical scars, tenderness to pressure, with persistent tight flexion, and the little toe had a 2cm freely moveable surgical scar.  “Normal” but symptomatic arch was circled.  Additionally, the CI had a right limp, unsteady heel-toe and jog, and jumped and landed equal with a grimace, stumbling to the side.  He complained of bilateral foot pain and was unable to stand on the balls of his feet or toes.

At the VA Compensation and Pension (C&P) examination dated 10 September 2007, performed approximately 1 month after separation, the CI reported daily pain in the feet, which was aggravated by standing and walking for prolonged periods of time.  Pain was on the balls of the feet between the 2nd and 3rd metatarsal heads and he had a pressure callus on the right foot.  Orthotics were used in all shoes, which he stated alleviated the pain significantly.  Examination revealed a normal posture and gait with no ambulatory aids.  Scars were present on both feet.  He had pes cavus of the right foot with lateral flexion deformities of the 2nd to 5th toes without painful motion or loss of motion.  The left foot also had pes cavus, tenderness of the 4th metatarsal, and lateral flexion deformities of the 2nd to 5th toes with no painful motion.  Weight bearing X-rays of the feet revealed screws spanning the healed great toe metatarsal and proximal phalanx osteotomy sites on the left foot along with flexion deformities of the toes. There had been resections about the 2nd through 5th toes proximal interphalangeal joints bilaterally and along the lateral margins of the fifth metatarsal head and neck, bilaterally.  On the right foot, a screw spanning a proximal phalanx osteotomy site was favored to be healed.  An anterior to posterior screw about the right metatarsal neck osteotomy site was without solid bony union.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5279 (metatarsalgia) for bilateral foot pain.  The VA assigned a 10% rating using code 5278 (claw foot (pes cavus)) for bilateral pes cavus, a 10% rating using code 5282 for hallux abductus valgus, left foot hammertoes deformities, second through fifth digits, and a 10% rating using code 5282 for hallux abductus valgus, right foot hammertoes deformities, second through fifth digits.  The Board noted the VA used the hallux abductus valgus as the primary diagnostic terminology for the CI’s foot conditions but coded each condition with a hammer toes code thereby avoiding the claw foot coding with the hallux valgus (which is not permitted). The Board sought a route to a higher rating aware that the CI had bilateral conditions with each foot independently having undergone extensive surgery.  However, the codes, 5279 and 5278, that the PEB and the VA used encompassed both unilateral and bilateral conditions.  

The PEB combined the bilateral foot pain conditions as a single unfitting condition coded 5279 for metatarsalgia (unilateral or bilateral) and rated 10%. The approach by the PEB commonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board’s initial charge in this case was, therefore, directed at determining whether the PEB’s approach of combining conditions under that code, which offered the same rating whether the condition was unilateral or bilateral was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

The evidence for the bilateral foot pain conditions was presented together above.  In this case, a bilateral condition was addressed in the profile and the bilateral foot pain conditions were implicated in the NARSUM and in the commander’s statement.  Members agreed that each foot’s condition is separately unfitting and that identical coding and ratings are applicable.  Board members then discussed the applicability of code 5099-5033 based on painful motion of the toes at the MEB examination in the presence of noncompensable range of motion measurements (ROM) and determined use of that code for each foot was reasonable and appropriate.  The Board noted the VA likewise rated each foot individually coded 5282, however, this does not offer any advantage to the CI compared to the use of the 5099-5003 codes.  Board members also considered code 5283 (moderate malunion or nonunion of tarsal or metatarsal bones) at a 10% rating based on a nonunion of the right metatarsal osteotomy site.  However, combining code 5283 with 5099-5003 could constitute pyramiding IAW VASRD §4.14, which is to be avoided.  The Board then evaluated the VA coding approach and questioned whether adding pes cavus as an additional code was appropriate since it was unclear from the record whether that by itself it would be independently unfitting and/or whether its use would invoke pyramiding.  Board members felt that adding the pes cavus would invoke pyramiding, since the CI already had pain in each foot.  The Board then sought any additional coding options that would result in a higher rating.  However, in the absence of pronounced or severe flatfoot, marked claw foot or all toes tending to dorsiflexion, severe or moderately severe malunion or nonunion of the tarsal or metatarsal bones, or severe foot injuries, the Board was unable to find a code that would offer a higher rating, although preoperatively the CI’s conditions would have warranted higher ratings.  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 right foot pain condition and a disability rating of 10% for the left foot pain condition.  

BOARD FINDINGS:  In the matter of the right foot pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left foot pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  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, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Right Foot Pain  	5099-5003	10%	
Left Foot Pain	5099-5003	10%	
RATING (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140804, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXX AR20160009320 (PD201403706)

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,
accept the Board's recommendation to modify the individual's disability rating to 20%
without re-characterization 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