RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00069
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090907

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated for “left first toe pain,” with a disability rating of 20%.

CI CONTENTION:  “Review all conditions.”  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 - 20090724	VARD - 20121004	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left First Toe Pain	5299-5284	20%	Hallux Rigidus s/p Bunionectomy, Left Foot	5281	0%	20120309	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:

Left First Toe Pain.  According to prior VA records, the CI had suffered from chronic pain due to left hallux valgus (bunion deformity of the big toe) since 2004.  The service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM) documented that he underwent a left bunionectomy in January 2008 (22 months before separation).  There was limited evidence from outpatient clinical notes in the available STR; and, there were none that were probative to range of motion (ROM) or other VASRD-ratable findings.  There were no entries that indicated gait disturbance or serious functional impairment, and no documentation of any additional VASRD-ratable foot diagnoses.  

The 30 June 2009 NARSUM examination, 2 months prior to separation, documented persistent nonspecific pain that was aggravated by prolonged walking or standing (“more than 15 to 20 minutes”), and that prohibited the wearing of military boots, running, jumping, and other general soldiering requirements.  The NARSUM podiatrist documented follow-up X-ray findings of dorsal displacement of the distal resection (osteotomy) of the first metatarsal bone resulting from “a malposition of the osteotomy after healing.”  The physical examination recorded the above metatarsal deformity, dorsal prominence and tenderness of the first metatarsophalangeal (MTP) joint, and “significantly reduced [ROM] of the left first [MTP] joint with [painful motion].”  There was no directed evidence regarding gait in the NARSUM or available STR, but a VA clinic entry four months after separation (with ample subsequent corroboration) documented a normal gait.  

The NARSUM podiatrist made separate diagnoses of “iatrogenic hallux limitus” (restricted motion of the great toe as a consequence of the surgery) and “first metatarsal ray elevatus” (the dorsal displacement of the first metatarsal as per the above X-ray).  The two diagnoses were separately listed on the MEB’s DA Form 3947 submission as failing retention standards.

Although the CI made a prompt VA claim a few weeks after separation, there was a lengthy delay in processing and he did not undergo a VA Compensation and Pension (C&P) examination until 09 March 2012 (2½ years after separation), which rendered it of limited probative value with regards to the ratable acuity at separation.  The VA examiner rated the pain as “mild or moderate” and stated that there was no occupational impairment.  The physical examination recorded limited extension of the great toe with no other directed findings, and excluded VASRD-ratable foot diagnoses other than hallux valgus and hallux rigidus (equivalent to the MEB diagnosis of hallux limitus).  The VA X-rays at that time described “a well healed osteotomy” without the malalignment or deformity referenced in the service X-rays.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB appropriately incorporated both MEB diagnoses as a single unfitting condition (complying with VASRD §4.14, avoidance of pyramiding); and, conferred a 20% rating under code 5299-5283 (analogous to metatarsal malunion or nonunion) citing the applicable “moderately severe” criterion of that code.  Code 5283 offers its highest 30% rating for “severe” disability.  The VA, referencing VA treatment records but not the above C&P, conferred a 0% rating under code 5281 (hallux rigidus).

The PEB’s 5299-5283 was the most advantageous code available under VASRD §4.71a; and, considering the service radiographic and NARSUM evidence, it was an appropriate clinical fit.  The panel considered whether the higher rating for “severe” disability under the code was justified; but, members agreed that the functional evidence at separation (presumably normal gait and good mobility, with an improving course as established by the VA evidence) was much better aligned with the “moderately severe” disability conceded by the PEB.  

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 of the left foot condition.

BOARD FINDINGS:  In the matter of the left foot condition 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 20160208, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013279, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

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