RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2015-01433
BRANCH OF SERVICE: army 	SEPARATION DATE:  20050616

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “left foot pain with a history of a wound from a 25mm AG round sustained in Korea” with a disability rating of 0%.  

CI CONTENTION:  “Shrapnel wound to left ankle with nerve damage, right shoulder injury, lower back, left shoulder strain, Tinnitus.”   The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20050308	VARD - 20050708	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Foot Pain with a History of a Wound from a 25mm AG Round Sustained in Korea	5099-5003	0%	Residual Scar, S/P Shrapnel Injury, Left Ankle	7805	0%	20050419	
			Hallux Valgus, Left Foot	5280	0%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:   

Left Foot Pain, Bilateral Pes Planus and Bilateral Hallux Valgus (HV).  The PEB combined the left foot pain, bilateral pes planus (PP), and bilateral hallux valgus (HV) conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 0% with application of the US Army Physical Disability Agency pain policy and AR 635-40 B24.f.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled 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 panel 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 left foot pain, bilateral PP and bilateral HV conditions are presented together below for clerical simplicity, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s left foot condition began in September 2003 due to a wound from a 25mm AG round during training.  The extensor hallucis longus (EHL) tendon (dorsiflexion [DF] of the great toe [GT]) was severed and the joint capsule of the ankle was penetrated.  The CI underwent surgical debridement of the wound and repair of the EHL tendon in September 2003.  At an orthopedic follow-up visit in October 2003, 5-6 weeks after surgery, the surgeon noted there was no active DF of the GT.  He indicated the CI may not be able to run for a year and may need further treatment.  At an evaluation in November 2003 while still in convalescence, the CI reported an unpleasant numb sensation over the top of the foot from the ankle laceration down and increased pain of the left GT.  At a podiatry visit on 19 April 2004 tenderness to palpation of the GT was noted and there was decreased sensation along the distribution of the intermediate dorsal cutaneous nerve (a branch of the superficial peroneal nerve.)  The permanent profile dated 16 September 2004 listed bilateral flatfoot bunions (pes planus hallux).  The commander’s statement dated 23 November 2004 implicated both the CI’s left foot injury during training and the bilateral flatfoot bunions as impairing the CI’s successful performance of the duties of his MOS

During the 28 December 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI indicated that he had nerve damage from his foot injury, but that since his last physical examination his overall health was better.  The physical examination showed bilateral symptomatic pes planus and HV.  The first metatarsal joints were tender with toe dorsiflexion. 

At the 7 January 2005 MEB specialty foot consult examination, 5 months prior to separation, the CI reported constant unpleasant numbness and tingling sensation over the top of the left foot and that the left foot bunion had become very painful.  Surgery for the bunion was not recommended due to the “overlying nerve pathology.”  Physical examination showed a one and half inch scar at the anterior aspect of the left ankle with a positive Tinel’s sign when the scar was tapped, with numbness/tingling from the scar over the top of the foot.  There was a moderately severe bilateral HV deformity with tenderness of the GTs, right greater than left.  There was normal range of motion (ROM) of the ankle and foot.  The podiatrist indicated that the bunion of the left foot did not permit the CI to wear boots.  The diagnoses noted were sensory nerve palsy of the left foot (dorsal cutaneous nerve) secondary to shrapnel injury and symptomatic hallux valgus bilateral, left more severe than right.

The 4 February 2005 MEB NARSUM examination, 4 months prior to separation, noted complaints of the left foot bunion preventing the CI from wearing Army boots and that because of his left foot condition he could not run or road march.  The physical examination cited the findings of the DD Form 2808 examination as above and also noted the same findings as the MEB foot consult, also above.  The MEB NARSUM examiner determined that the CI fell below retention standards due to left foot nerve palsy and bilateral hallux valgus.  

At the 19 April 2005 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported stiffness of the bilateral feet and pain and stiffness with walking.  Physical examination showed a normal gait.  There was an elevated left ankle scar without tenderness, adherence, or limitation of motion.  The ankles appeared normal.  There was full bilateral ankle ROM without additional loss of ROM with repetition.  There was no tenderness, swelling or weakness of the either the left or right foot.  There was pes planus and a moderate hallux valgus bilaterally.  There was no TTP of the bottom of the feet.  The VA examiner noted there was no limitation with standing or walking.  Lower extremity strength, sensation, reflexes and circulation were all normal.  Bilateral foot X-rays showed the pes planus and HV deformities.  Left ankle X-rays were normal.  The VA examiner’s assessment was that there was no diagnosis for either the left foot condition or the bunions because there was no pathology to render a diagnosis in either case.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left foot pain with pes planus and bilateral bunions 0%, coded analogously to 5003 (degenerative arthritis), citing the US Army Physical Disability Agency (USAPDA) pain policy.  The VA rated two conditions of the left foot – hallux valgus, coded 5280 (hallux valgus) and residual scar of the left ankle, coded 7805 (scars, other), both 0%, and also rated bilateral pes planus 0%, coded 5276 (acquired flatfoot) based on the C&P examination 2 months before separation.  

The panel first considered if the left foot pain, bilateral PP, and bilateral HV conditions, having been separated from the combined PEB adjudication, remained separately unfitting as established above.  The panel noted that the left foot pain included any contribution to pain from the left nerve palsy, left PP and HV conditions.  The permanent profile listed bilateral PP and HV and the commander’s statement implicated the bilateral PP and HV conditions and the left nerve palsy and bilateral HV conditions were judged to fall below retention standards.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the left foot pain, and bilateral PP and HV conditions condition were reasonably considered separately unfitting.  As noted above, the left foot pain encompassed pain from the sensory nerve palsy, left PP and HV conditions.  The functional impairment due to pain from these three left foot conditions could not be separated and therefore, the left foot pain could not be any further unbundled.  Likewise any impairment of the right foot due to PP and HV could not be further unbundled.  The panel then considered its rating recommendation for the unfitting left foot pain (including nerve palsy, PP and HV) and the right PP and HV condition at the time of separation.  

The panel noted that the pre-separation VA examination was the most proximate examination to separation and considered this examination to have the most probative value in its rating recommendation because it was the furthest from the date of injury and subsequent surgery.  The panel considered that this examination provided the greatest convalescent period prior to evaluation of the permanent disability associated with the condition.  Nerve injury may improve over several months and at the VA examination the CI did not report any numbness or tingling of the foot.  The examination noted normal sensation and strength of the foot and there was no tenderness of the foot.  There was no evidence of permanent nerve impairment for a 10% rating coded IAW VARSD §4.124a (neurological conditions).  The panel next considered ratings IAW VASRD §4.71a (musculoskeletal system).  There was no limitation of ankle motion for 10% rating under 5271 for moderate limitation of motion or painful motion with functional loss (based on §4.59, §4.40, §4.45).  There was no evidence of severe hallux valgus equivalent to amputation of the great toe for a 10% rating under 5280.  There was no evidence of pain of the left first metatarsal joint at the VA examination, the most proximate examination to separation, for a 10% rating under 5279 (metatarsalgia).  There was no evidence of tenderness of the bottom of the foot or pain on manipulation and use of the feet due to the pes planus condition for a rating greater than 0% under 5276.  There was therefore no higher rating available than the 0% adjudicated by the PEB under any applicable VARSD code.  

Due to the bilateral nature of the PP and HV condition, the panel next considered the rating of the right PP and HV condition before making a 0% rating recommendation for the left foot condition.  The VA examination was the most proximate examination to separation and was judged by the panel to have the most probative value in its rating recommendations for the right PP and HV condition.  There was no evidence of severe hallux valgus equivalent to amputation of the great toe for a 10% rating under 5280.  There was no evidence of pain at the right first metatarsal joint at the VA examination for a 10% rating under 5279 (metatarsalgia).  There was no evidence of tenderness of the bottom of the foot or pain on manipulation and use of the feet due to the pes planus condition for a rating greater than 0% under 5276, whether for unilateral or bilateral PP.  
 
After having unbundled the PEB’s combined adjudication, the panel found there was no rating benefit to the CI.  Therefore, no change to the PEB’s combined adjudication is recommended.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left foot pain with bilateral pes planus and bilateral bunions.  

BOARD FINDINGS:  In the matter of the left foot pain with bilateral pes planus and bilateral bunions and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  
The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160614, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170008498, XXXXXXXXXXXXXXXXXX 

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Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,					       
						      					
Enclosure