RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00613
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20040702

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Barber, medically separated for “second MTP [metatarsophalangeal] synovitis [left foot]” with a disability rating of 10%.

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 it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20040402	VARD - 20041025	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Second MTP Synovitis, Left Foot	5279	10%	Left Foot Reflex Sympathetic Dystrophy (RSD)	5284-8524	30%	20041025	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Second MTP Synovitis, Left Foot.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent joint debridement with local tendon release on 20 December 2002.  Post-operative STR entries documented an initially favorable course with restoration of a normal gait.  Subsequent entries, however, documented the development of stiffness and near total loss of range of motion (ROM) at the second MTP joint, constant localized pain in the same area, decreased ROM of contiguous toes (sparing great toe), and an antalgic gait.  Multiple STR entries documented nonspecific tenderness dorsally over the affected joint, with one characterization as “very” tender (even to light touch).  There were entries that documented normal color and temperature, and none that documented such abnormalities or reported a complaint of these symptoms.  No STR entries documented any motor weakness at (or proximal to) the ankle.  There was no STR documentation of any reflex or sensory deficits, or of a marked gait disturbance.  The working diagnosis was either “metatarsalgia” or “synovitis;” and, a diagnosis of RSD was not made or formally entertained by any service examiner (in contrast with VA evidence below).    

The 12 November 2003 MEB NARSUM examination, 8 months prior to separation, noted complaints of constant left foot pain precluding the ability to tolerate standing or walking for periods longer than 20 minutes.  The physical examination recorded a slight limp, a “rigid” second toe, weak dorsiflexion, slightly stronger plantar flexion of other toes and “discomfort with soft tissue palpation between metatarsal heads.”  An MRI did not demonstrate any significant pathology, and X-rays showed mild demineralization felt to be secondary to disuse from surgery.

There was no probative evidence from the interval between the NARSUM and the 21 July 2004 VA general Compensation and Pension (C&P) evaluation, 3 weeks after separation.  At the C&P evaluation the CI complained of 8-9+/10 foot pain that forced her to walk on the side of her foot and resulted in an “extremely abnormal” gait, but no other specific functional limitations were elaborated.  The CI reported a history of an intermittent cold foot, color changes and spontaneous sweating (symptoms associated with RSD).  The physical examination recorded normal temperature with no abnormal sweating and “no movement of toes two through five,” but her great toe moved normally and was pain free.  There was dorsal swelling with “exquisite tenderness” over MP joints two through five.  There was no comment regarding ankle ROM or other joint findings, or of any abnormal motor or sensory neurologic findings.  The C&P examiner diagnosed RSD based on the above findings, reported history, and VA X-ray findings of osteoporosis, which was “consistent with the diagnosis of RSD.”  Of note, osteoporosis by X-ray is found with any painful condition resulting in disuse (no specificity for RSD), and a bone scan by the VA a month after the C&P evaluation was normal (not typical for RSD of the severity portrayed by the examination).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5279 (metatarsalgia) is the maximum offered by that code.  The VA’s 30% rating, based on the C&P evidence, was under code 5284-8524 (foot injuries, other - incomplete paralysis of internal popliteal [tibial] nerve).  The VA decision cited the “severe” 30% criterion applicable to both codes (5284 and 8524).  

This case was complicated by a significant disparity in the severity of disability as reflected by the service evidence versus the C&P evidence, possibly due to the development of RSD in the interval between PEB adjudication and separation.  The latter was not clearly established by the clinical evidence, as detailed above, but remained possible.  It was clear there was no suspicion of the diagnosis to be found in the service evidence, and the delayed evolution of RSD so far after the inciting injury (presumably the surgery) would be atypical.  Nevertheless, there was no evidence from the interval between the NARSUM and separation to refute the development of RDS (or clinical worsening even without that diagnosis) resulting in significantly more severe disability at the time of separation.  Since the panel’s recommendation is based on disability at the time of separation, panel consensus was that reasonable doubt favored the assignment of determinant probative value to the more contemporaneous C&P evidence.  It was recognized, however, that subjective elements of the C&P and the uncertainty of the VA diagnosis were subject to separate probative value judgments.  

The panel then turned to deliberation of the appropriate rating recommendation on that basis.  It was first agreed there were no alternative VASRD codes more favorable to rating than codes 5284 (as above) and/or the applicable nerve code (thereby conceding the presence of disability consistent with RSD, even without a firm diagnosis).  Rating for ankle limitation of motion was neither applicable, given the location of the pathology, nor advantageous.  

With regards to code 5284, the VA conceded the “severe” 30% criterion, but it offers a rating of 20% for “moderately severe” disability.  Member consensus was that the disability in evidence at separation (pain, weakness and ROM limitation confined to toes, sparing the more functionally important great toe, even with significant gait disturbance) was more reasonably characterized as moderately severe than as severe disability.  

With regards to rating for nerve impairment, the panel noted the VA’s code choice (8524, internal popliteal) was not anatomically applicable to the pathology.  The motor and sensory functions of the affected MTP joints are provided by a distal branch of the anterior tibial (deep peroneal) nerve.  The latter is rated under code 8523 that confers a 20% rating for “severe” impairment.  Furthermore, the rating scale for both codes subsumes loss of foot strength at the ankle, not present in this case.  Member consensus was that a 20% rating under code 8523 was the maximum justified (with significant concessions) for nerve impairment.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the panel’s consensus recommendation is a 20% rating for the left foot condition under code 5284-8523.

BOARD FINDINGS:  In the matter of the left foot condition, the panel by a majority vote recommends a disability rating of 20%, coded 5284-8523 IAW VASRD §4.71a and §4.124a.   The single voter for dissent recommends no change and does not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Surgical Residuals and Neuropathy, Left Foot 	5284-8523	20% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		     COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	 (b) PDBR ltr dtd 23 Jan 18 ICO XXXXXXXXXXXXXXXXXX 
	 (c) PDBR ltr dtd 23 Jan 18 ICO XXXXXXXXXXXXXXXXXX
	 (d) PDBR ltr dtd 23 Jan 18 ICO XXXXXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 10 Jan 18 ICO XXXXXXXXXXXXXXXXXX
	 (f) PDBR ltr dtd 23 Jan 18 ICO XXXXXXXXXXXXXXXXXX
	 (g) PDBR ltr dtd 23 Jan 18 ICO XXXXXXXXXXXXXXXXXX    
	 (h) PDBR ltr dtd 10 Jan 18 ICO XXXXXXXXXXXXXXXXXX
	 (i) PDBR ltr dtd 10 Jan 18 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.  The official records of the following individuals are to be corrected as follows:

     a. XXXXXXXXXXXXXXXXXX, 
     b. XXXXXXXXXXXXXXXXXX,   
     c. XXXXXXXXXXXXXXXXXX
     d. XXXXXXXXXXXXXXXXXX, 
     e. XXXXXXXXXXXXXXXXXX, 
     f. XXXXXXXXXXXXXXXXXX, 
     g. XXXXXXXXXXXXXXXXXX, 
     e. XXXXXXXXXXXXXXXXXX    

2.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

                              	XXXXXXXXXXXXXXXXXX
                              	Acting