RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01289
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20061121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, M1 Armor Crewman, medically separated for “left foot pain” with a disability rating of 10%.

CI CONTENTION:  Through legal representation, the CI requested his left foot rating be increased.  Counsel's 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 - 20061101	VARD - 20070402	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Foot Pain	5284	10%	Fractures … [Surgical Residuals], Left Foot	5013-5283	30%	20070223	
			Strain and Osteopenia, Left Ankle	5013-5271	10%		
			Residual Scars [Surgical Residuals], Left Foot	7804	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Left Foot Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI left foot condition began in August 2005 after a motorcycle accident.  Initial foot and ankle X-rays were negative, but he was prescribed crutches for non-weight bearing.  He continued to complain of foot pain (no ankle complaints), and follow-up X-rays remained normal.  A bone scan of 29 September 2005 was interpreted as “occult versus stress fractures” of multiple tarsal and metatarsal bones (navicular, medial cuneiform, 3rd tarsal-metatarsal [TMT] joint), with no displacement and no involvement of any bones articulating at the ankle.  The CI was treated in a cast and remained non-weight bearing.  There was a note on 10 November 2005 that he had recently fallen and was experiencing “extreme pain in left foot,” and a repeat X-ray was normal.  With persistent pain, however, a Lisfranc (key joint structure to stability of the midfoot and arch) dislocation was identified under fluoroscopy, and surgery (a Lisfranc procedure, wire fixation of all TMT joints) ensued on 12 December 2005.

The CI was progressing in a cast post-operatively, but fell again in February 2006 (negative X-rays), and reported persistent pain.  There was a suspicion of irritation from the hardware, which was removed on 3 March 2006.  He progressed in a cast to ambulation without crutches, but a podiatry entry on 23 March 2006 reported yet another fall with renewed pain.  X-rays showed “mild osteopenia” (bone demineralization) without evidence of fracture or malalignment.

The CI was then referred to a civilian podiatrist.  That examination on 7 April 2006 recorded that he had been told to walk on his foot right after the injury, conflicting with the course of non-weight bearing on crutches documented in the STR.  The podiatrist noted “mid-foot [and] arch” pain prohibiting full weight bearing.  Physical examination revealed tenderness and pain with manipulation at the TMT joints.  Weight bearing X-rays showed “perfect” alignment, no significant degenerative changes, and no evidence of fractures.  An MRI was ordered that reported non-displaced fractures of the navicular and all metatarsals.  Alignment was anatomic, there was no TMT (Lisfranc) dislocation, and no involvement of ankle articular, ligament, or tendon structures.

The civilian podiatrist interpreted the MRI findings as “stress fractures.”  The evidence did not clearly establish whether the fractures represented stress fractures, re-fracture from one or more of the falls, non-union after surgery, or some combination of these.  The pain persisted and the podiatrist recommended mid-foot graft fusion of the TMT joints (Lisfranc fusion) which was accomplished on 1 June 2006 (6 months before separation).  Post-operative entries by the civilian podiatrist documented the absence of wound complications, normal alignment, resolution of swelling, “full” range of motion (ROM) of the foot (no positive ankle findings), and 5/5 strength.  An entry from the civilian podiatrist of 12 July 2006 (6 weeks after surgery) documented that the CI was placed in a short leg walking cast, but was to remain non-weight bearing until the next appointment.  There were no subsequent civilian entries available in the STR.

Service entries in the interval between the last fusion surgery and separation documented an initial progression to full weight bearing in a cam walker (stabilizing boot), followed by a recurrence of pain and reduction to partial weight bearing, finally leading to MEB referral.  Serial X-rays over that period demonstrated intact fusion, normal alignment, and mild osteopenia.  There were no STR entries from that period that were probative to ROM (ankle or foot) or other ratable foot findings, except for the MEB examination (DD Form 2808) of 24 August 2006 (3 months before separation) which documented an antalgic gait and “limited flexion of toes.”

Of note, nearly every STR clinical note recorded a chief complaint of foot pain, many of them localizing it to the mid-foot and arch, without mention of ankle complaints.  The only exceptions were ankle pain in addition to foot pain after one of the falls recorded by the aforementioned 23 March 2006 podiatry note, and “foot and ankle pain” as the reason for the examination on the civilian MRI request (not correlated with the associated clinical note).  All preceding and subsequent entries addressed only foot pain and foot issues.

The 2 October 2006 MEB NARSUM examination, 7 weeks prior to separation, corroborated the above clinical course (specifying an initial 2 months of non-weight bearing after the injury).  The examiner documented a chief complaint of “left foot pain” that was rated “moderate and frequent” (American Medical Association [AMA] pain rating scale); and, specified functional limitations of “cannot fully weight bear without ambulatory assistance and cannot stand greater than 15 minutes without pain limiting symptoms.”  Physical examination recorded equivocal mid-foot edema and “less than 5/5 strength with guarding at the metarsophalangeal [base of toe] joint.”  There was no note of tenderness or malalignment, and the examiner did not characterize the gait, although did reference the concurrent use of a cam walker.  Measured ankle ROM was dorsiflexion to “less than 10” degrees (normal 20) and plantar flexion to “less than 30” degrees (normal 45), without addressing painful motion.  The MEB NARSUM orthopedist opined, “I expect with continued physical therapy and time that the patient would be able to resume most walking activities in approximately one year.”

The permanent profile in place at separation (dated 26 June 200) permitted walking at own pace and distance.  The undated commander’s performance statement documented that the CI was performing administrative duties; and, was unable to mount or dismount tanks, engage in heavy lifting, or “bear additional weight of combat equipment.” It did not reference any gait observations or limitations with routine ambulation or mobility.

The 23 February 2007 VA Compensation and Pension (C&P) evaluation, 3 months after separation, documented separate complaints of left ankle, knee, and hip pain attributed to the motorcycle injury in addition to the foot pain.  No complaints of knee or hip pain were documented in the MEB Examination (DD Form 2807-1 medical history), the MEB NARSUM, or directed STR entries.  The ankle pain was characterized as constant and rated 7/10.  The foot pain was characterized as constant and rated 9/10.  Identical functional limitations were described for each of the joints referenced above and the foot, i.e., “walking or standing over 5 minutes.”  The C&P physical examination recorded an abnormal gait (“limps and walks with a cane”) without a cast or brace, non-tender surgical scars with no ratable features, “painful motion and tenderness” of the left foot without note of swelling or weakness, and the absence of deformity or any other VASRD-ratable foot diagnosis.  Ankle ROM was dorsiflexion to 15 degrees and plantar flexion to 30 degrees.  The examiner noted a 5 degree degradation with repetition due to pain, without specifying planes of motion (suggesting an estimation rather than measurements).  The VA X-ray interpretation was “evidence of prior operative fixation and osteopenia related to disuse.”

Although not probative to the disability at separation, it was noted that the CI underwent a below the knee amputation of the ankle and foot by the VA in 2014 (8 years after separation).  A pre-operative VA note of 25 June 2014 documented that this was an elective and final-option measure for pain control.  It documented X-ray findings of a normal ankle, well aligned foot fusion (“no evidence currently of nonunion”), and a “little bit of diffuse osteopenia.”  It also documented the development of neuromas after separation that made a significant contribution to the pain.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left foot condition 10%, coded 5284 (foot injuries, other), citing the VASRD §4.71a criterion of “moderate” disability applicable to the code and rating.  The PEB’s DA Form 199 decision did not reference, or invoke criteria of, the U. S. Army Physical Disability Agency pain policy (applying AMA pain rating criteria and setting a 20% maximum for rating pain).  Code 5284 also offers ratings of 20% for “moderately severe” and 30% for “severe” disability.  The VA rated the left foot condition 30%, analogously coded 5013-5283 (osteoporosis, with joint manifestations - rated as tarsal, or metatarsal bones, malunion of, or nonunion), based on the C&P examination 3 months after separation, citing the applicable of code 5283 criterion of “severe” disability; which is identical to code 5284 criterion.

The panel first considered if separate ratings for foot and ankle disability were defensible in this case, but members agreed that they were not.  Although ankle pain was sporadically documented in the STR, a separately ratable ankle diagnosis was not.  There was no specific ankle pathology identified on multiple imaging studies or by objective clinical findings.  There was also no corresponding MEB submission or PEB adjudication, thus a well-defined ankle condition did not exist that would logically fall within the DoDI 6040.44 scope as elaborated above.  Even if scope were conceded as a condition intrinsically associated with the unfitting condition, a determination that it was unfitting (separately or in combination) was not well established by performance-based evidence.  The MEB ROM evidence met the AR 40-501 threshold for MEB referral; but, that is a consideration for, not a determinant of, PEB fitness determination.  In addition, the panel agreed that separate rating of the ankle would be dubiously compliant with VASRD §4.14 (avoidance of pyramiding), since the pain already rated as foot disability was the only discernible cause of ankle ROM limitation.  Members additionally agreed that the evidence probative to the surgical scars did not support the presence of any fitness limitations as is requisite for service disability rating.

With regard to rating of the unfitting foot condition, the VA's 5283 coding choice was more clinically applicable than the more generic 5284 PEB code; although, given the absence of evidence for malunion or non-union at separation, code 5283 would be more precisely designated as analogous.  The rating, however, would be unaffected by the choice between these two codes given the identical rating scales.  Other than codes 5283 and 5283, there was no evidence for any ratable criterion or separately coded foot diagnosis that would justify a rating higher than 10% under any other applicable code available in VASRD §4.71a.  Panel members agreed, however, that the disability in evidence at separation was fairly characterized as more consequential than the 10% “moderate” as assessed by the PEB.

Having agreed that a higher rating recommendation was indicated, and that the preferable code was 5299-5283, the panel was left to consider whether the 20% “moderately severe” or 30% “severe” rating was best aligned with the evidence.  It was first noted that the CI had experienced a waxing and waning course, complicated by repeated falls after the initial injury, and at times was fully ambulatory.  Although at the time of the MEB NARSUM he was not fully weight bearing and still required joint support (cam walker), by the time of the C&P examination he was fully weight bearing without the use of joint support (albeit with an antalgic gait (limp) and use of a cane).  The C&P functional evidence was also confounded by dilution with the knee and hip contributions.  The MEB NARSUM prognosis at the time of separation, barring further complication by repeat injury, was reasonable; and, it was consistent with the typical clinical course for Lisfranc injuries (notwithstanding the fact that this was not borne out by the ultimate clinical course and post-separation developments in this case).

Therefore, the overall disability at separation would reasonably be considered to entail preserved ambulation and general mobility; but, limitation of prolonged standing or walking, prohibition of heavy lifting or load-bearing, and prohibition of all strenuous activities.  All manual tasks and essential activities of daily living would logically be unaffected (excepting yard work, extended shopping, etc.).  Occupational impairment would be significant, but would not preclude full employment in multiple sedentary or lightly demanding career pursuits; and, this level of functioning was corroborated by the profile and commander’s statement.  After due consideration, members agreed that the above level of disability was better aligned with the 5283 “moderately severe” (20%) criterion than with the “severe” (30%) criterion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 20% rating for the left foot condition, coded 5299-5283.

BOARD FINDINGS:  In the matter of the left foot condition, the panel unanimously recommends a disability rating of 20%, coded 5299-5283 IAW VASRD §4.71a.  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 the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Multiple Fractures and Surgical Residuals, Left Foot	5299-5283	20% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160928, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170019693, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,	
Enclosure