RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01577
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050112

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E4, Motor Transport Operator, medically separated for “chronic pain, right foot, status post bunionectomy and tarsal tunnel release” with a disability rating of 0%.  

CI CONTENTION:  “Right foot tarsal tunnel release with degenerative joint disease calcaneal spurs, and plantar fasciitis right great toe post status bunionectomy scar,  status post, right tarsal tunnel release ([illegible] pain).  Scar right great toe.”  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 - 20041208	VARD – 20040202 & 20050709	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Foot …	5009-5003	0%	Status Post Bunionectomy, Right Great Toe/Foot	5280	10%	20030114
20050428	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:

Chronic Right Foot Pain.  The PEB combined the right foot bunionectomy and right foot tarsal tunnel release 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.  

According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right foot condition began in April 2003 without acute trauma following increased climbing activity while deployed.  She underwent a right foot bunionectomy and first dorsal digital nerve transposition on 17 October 2003.  Post-surgery she was unable to stand for long periods due to chronic foot pain, and subsequently had a right foot tarsal tunnel decompression on 9 March 2004.  

The 28 October 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of chronic right foot pain and weakness with difficulty prolonged walking or standing.  Physical examination showed decreased right ankle strength (4/5).  Ankle range of motion (ROM) was dorsiflexion to 10 degrees (normal 20) and plantar flexion to 35 degrees (normal 45).  The first metatarsal phalangeal joint (great toe) had extension to 70 degrees with no joint effusions or deformities.  There was calcaneal tenderness but no ankle instability or arch abnormalities.  The provider indicated the CI had “a near normal gait,” but after prolonged walking or standing, she limped considerably from right foot pain.  A 22 December 2004 bone scan showed mildly increased uptake about the right first metatarsal phalangeal joint, but was otherwise normal.  

At the 28 April 2005 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported episodes of right foot "tingling" in the medial side of the arch and a shooting pain down to the great toe after she walked or stood over 20 minutes.  She had right heel swelling at the end of the day and could walk 3 miles with foot pain.  She had constant right great toe pain with intermittent redness and swelling.  Physical examination showed a normal gait and tenderness of the right tarsal tunnel release scar.  Right ankle ROM was dorsiflexion to 20 degrees and plantar flexion to 40 degrees, without painful motion, crepitus, or instability.  Rising on tiptoes elicited complaints of pain in the right great toe, strength was decreased to 4/5, and ROM was slightly decreased compared to the left toe.  There was right malleolus area tenderness and sensation was intact.  X-rays revealed right great toe degenerative changes and a generalized demineralization of the bones in the right foot and ankle.  An operation report on 25 May 2005, 4 months after separation, documented that the CI underwent a repeat right foot tarsal tunnel and plantar fascia releases for chronic pain and neuritis.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition 0%, analogously coded 5099-5003 (degenerative arthritis), citing the US Army Physical Disability Agency pain policy and slight/intermittent pain.  The VA rated the right great toe/foot condition 10%, coded 5280-5276 (hallux valgus, unilateral-flatfoot, acquired), based on the C&P examination 4 months after separation, citing pain on manipulation and use of the foot.  The STR did not provide any information which permitted the panel to discriminate the performance limitations attributable to either the bunionectomy over the tarsal tunnel release as the cause of chronic right foot pain.  Since undue speculation would be required to conclude that impairment from either condition would not have unacceptably interfered with the performance of military duties, members agreed that each condition was reasonably justified as separately unfitting.  

The panel then deliberated whether the level of severity of the bunionectomy met the 10% criteria of 5280 (hallux valgus, unilateral), which is “severe, if equivalent to amputation of great toe;” and/or whether the tarsal tunnel met the 10% criteria of 8725 (posterior tibial nerve; neuralgia) for a “mild/moderate incomplete paralysis” disability.  The panel considered the CI’s specific symptoms and findings, but application of VASRD §4.14 (avoidance of pyramiding) would not allow for a 10% rating level for each condition separately.  However, members agreed the combination of the CI’s conditions and right foot disability picture best approximated the 10% criteria, coded of 5280-8725, IAW VASRD §4.124a.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the chronic right foot pain, status post bunionectomy and tarsal tunnel release condition, coded 5280-8725.  

BOARD FINDINGS:  In the matter of the chronic right foot pain, status post bunionectomy and tarsal tunnel release condition, the panel unanimously recommends a disability rating of 10%, coded 5280-8725 IAW VASRD §4.71a and §4.124a.  There are no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Foot Pain, Status Post Bunionectomy and Tarsal Tunnel Release	5280-8725	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180001847, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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.

Sincerely,					      
Enclosure