RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01683
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040720

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Unit Supply NCO, medically separated for “hallux valgus, bilateral, status post-surgical treatment, with left foot manifesting continued pain.  Right foot not rated, not unfitting.” 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 that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040401	VARD - 20041006	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Hallux Valgus, Bilateral with Left Foot  Pain …	5280	10%	Left Foot First Metatarsal Bunionectomy and Fifth Metatarsal Secondary to Hallux Valgus	5280	10%	20040114	
			Right Foot First Metatarsal and Fifth Metatarsal Status Post Surgery	5280	10%	20040114	
Occasional Low Back Pain	Not Unfitting	Degenerative Disc Disease of the Thoracolumbar Spine	5242	10%	20040114	
Occasional Retropatellar Pain Syndrome		Mild Degenerative Joint Disease, Right Knee	5003-5261	10%	20040114	
		Mild Degenerative Joint Disease, Left Knee	5003-5261	10%	20040114	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Bilateral Foot.  The PEB combined the bilateral foot conditions as a single condition coded 5280 (hallux valgus) and rated 10%.  However, the PEB disability description specified that the right foot was not rated and not unfitting.  Therefore, when considering a separate rating for the right foot condition, the panel considers the right foot condition to be a contended “not unfitting” condition (addressed below) and not a bundled condition.  

According to the service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral foot condition began in March 2002 during basic training.  X-rays showed bilateral hallux valgus.  The CI’s bilateral foot pain continued despite profile restrictions and orthotics.  She underwent left foot bunionectomy and tailors bunionectomy (first and fifth toes:  Juvara-Akin bunionectomy of the first metatarsal and a closing wedge osteotomy of the fifth metatarsal) on 25 June 2002 and right foot bunionectomy (and tailors bunionectomy) on 26 November 2002.  In March 2003 she was fitted with custom orthotics with temporary relief of symptoms.  However, foot symptoms recurred and the CI had removal of painful left foot hardware on 7 November 2003.  

During the 23 February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported bilateral foot pain with left foot numbness and tingling and pain in the left leg, following bilateral bunion surgery.  Physical examination showed right foot tenderness over the first metatarsophalangeal (MTP) joint with 15 degrees of valgus deviation, dorsiflexion to 0 degrees, and plantar flexion to 20 degrees.  The left foot showed moderate MTP joint tenderness with 20 degrees of valgus deviation, dorsiflexion to 0 degrees, and plantar flexion to 10 degrees.  

The 26 February 2004 MEB NARSUM examination, 3 days later, noted complaints of sharp shooting pain in both feet.  There had been progressive return of symptoms since recovery from her surgeries.  Physical examination showed ankle dorsiflexion to 0 degrees (normal 20) and plantar flexion to 35 degrees (normal 45) on the left and right.  Both MTP joints had some residual tracking noted with pain on motion on the first and second MTP joints and tenderness of both feet.  The hallux (and second toe) failed to purchase on the left, with normal purchase on the right.  First MTP joint motion was 40 degrees on the right and 20 degrees on the left with plantar flexion 5 degrees on the right and neutral on the left.  The NARSUM physician observed the podiatrist’s note (of the same day) which documented that the CI’s hallux failed to purchase on the left, as well as the second toe, with normal purchase of the right hallux and fifth digit.  There was tenderness and pain with all MTP joint ranges of motion.  

The 19 March 2004 MEB NARSUM examination, 4 months prior to separation (by the DD Forms 2807-1 and 2808 author), noted complaints of bilateral foot pain with left foot random sharp severe shooting pains that were provoked by any weightbearing activity, and occasional right foot pain.  She could bear weight up to approximately 20 minutes at a time without significantly increased pain.  She could not run, jump, or perform impact activities.  Medications included occasional Percocet (narcotic) or ibuprofen (nonsteroidal anti-inflammatory).  Physical examination was the same as on the MEB examination above.  The examiner stated “she also has occasional pain in her right foot, not significantly limiting given the limitations of the left foot.”  

At the 14 January 2004 VA Compensation and Pension (C&P) evaluation, 6 months before separation, the CI reported bilateral foot pain with frequent flares.  She could not walk fast, and even with use of orthotics she had to go very slowly.  Physical examination showed mild limping because of pain and the right great toe not touching the floor in the final phase of gait.  The right hallux range of motion (ROM) was 30 degrees without pain.  The left hallux was normal.  The left first MTP joint had no ROM, and the right had 5 degrees of extension and 0 degrees of flexion.  There was pain at the right foot bunion cite and no pain at the left foot bunionectomy site.  Bilateral ankle motion was normal.  The 14 June 2004 C&P evaluation, 1 month before separation, noted continued bilateral foot pain following surgeries on her toes.  The examination was focused on the right ankle and did not addressed details of the feet.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB rated the left foot hallux valgus condition 10%, coded 5280 (hallux valgus), citing continued left foot pain.  The VA rated the bilateral foot condition as a left foot condition rated 10%, coded 5280, and a right foot condition rated 10%, coded 5280; both based on the C&P examination 6 months before separation, citing surgery with resection of the metatarsal head for each foot.  There was clear evidence of left hallux valgus operated with resection of the metatarsal head, which met the 10% rating criteria under disability code 5280.  Panel members noted that 10% is the highest rating available under 5280.  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 left hallux valgus condition, coded 5280.  

Contended Right Foot Hallux Valgus (Not Unfitting) Condition.  The commander’s statement implicated the profile and specified that the CI “demonstrated considerable amounts of pain in any activity that required her to put weight on her feet.”  The profile was for bilateral symptomatic bunions, unresponsive to surgery and included wearing of soft shoes in uniform as needed.  The NARSUM and the MEB indicated that “bilateral feet: hallux valgus, moderately severe” did not meet retention standards.  

The NARSUM examiner’s statement that the right foot condition was “not significantly limiting given the limitations of the left foot” indicated that the left foot was much more limiting than the right foot condition; however, wear of soft shoes on the right foot, and multiple examinations indicating painful right MTP joint motion, clearly indicated that absent the left foot limitations, the right foot condition was also separately duty-limiting.  There was performance-based evidence from the record that the right foot condition significantly interfered with satisfactory duty performance at separation.  As the right hallux valgus had been operated with resection of the metatarsal head, it met the 10% rating criteria under disability code 5280.  After due deliberation, the panel agreed that the preponderance of the evidence with regard to the functional impairment of right hallux valgus condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 5280 and meets the VASRD §4.71a criteria for a 10% rating.  

Contended PEB Conditions:  Back and Knees.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the bilateral hallux valgus condition, the panel unanimously recommends each joint be separately adjudicated as follows: an unfitting left hallux valgus condition coded 5280 and rated 10%, and an unfitting right hallux valgus condition, coded 5280 and rated 10%, both IAW VASRD §4.71a.  In the matter of the contended back and knees conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  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 the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Hallux Valgus, Left Foot S/P Surgery	5280	10%	
Hallux Valgus, Right Foot S/P Surgery	5280	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161102, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180002664, 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