RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00008
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040709

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

CI CONTENTION:  The medical conditions warrant disability retirement.  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 - 20040603	VARD - 20050915	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Foot Pain	5399-5310	10%	Right Foot Sprain, Claimed Right Foot Injury	5024	10%	20041028	
			Left Foot Injury	5024	NSC	20041028	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40% 	

ANALYSIS SUMMARY:  

Bilateral Foot Pain.  The PEB combined the left and right foot conditions under a single disability rating, coded 5399-5310 (analogous to muscle injury affecting movement of the forefoot and toes) and rated 10%.  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’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.  The evidence for the left and right foot conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral foot condition began in March 2003 after a hard parachute landing.  Podiatry diagnosed him in February 2004 with severe intractable symptomatic pes planus (flat foot) and hyper-pronation syndrome (inside of sole bearing the body weight), but surgery was not indicated.  The induction physical showed the CI had a normal arch of both feet.  

During the 27 April 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported foot joint swelling.  Physical examination showed severe symptomatic pes planus.  The 27 April 2004 MEB NARSUM examination showed severe pes planus with some tenderness in the plantar surfaces and anteriorly.  Right ankle dorsiflexion lacked 5 degrees (normal 20), plantar flexion was 50 degrees (normal 45), inversion was 20 degrees and eversion was 15 degrees.  Left ankle dorsiflexion was 5 degrees, plantar flexion was 50 degrees, inversion was 20 degrees and eversion was 5 degrees with pain reported with all range of motion measurements at the end range.  

At the 28 October 2004 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported pain and swelling of both feet at rest, standing or walking.  Physical examination of the feet showed no signs of abnormal weight bearing.  There was no callus formation and no skin breakdown.  The CI did not use any assistive devices for walking.  Examination of the feet revealed mild tender swelling on the proximal dorsum of the right foot with painful motion.  The left foot was normal.  There was no flat feet, claw feet, hammertoes, Morton's metatarsalgia, hallux valgus or hallux rigidus.  There was no limitation of function with standing or walking observed.  The CI did not require any type of corrective shoe wear.  Gait was normal.  Plantar flexion was 45 degrees bilaterally and dorsiflexion was 20 degrees bilaterally.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the left and right foot conditions and applied a single 10% rating coded 5399-5310, citing moderate disability with pedal edema and tenderness.  The VA rated the right foot condition 10%, coded 5024, (tenosynovitis), based on the C&P examination 3 months after separation, citing painful motion.  The VA did not rate the left foot condition, citing no evidence showing a chronic left foot disability.  

The panel first considered if each foot, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The CI was profiled and was allowed to wear soft shoes.  There was performance-based evidence from the record that both feet significantly interfered with satisfactory duty performance at separation.  Panel members agreed the left and right foot conditions were reasonably justified as separately unfitting and met the VASRD §4.71a criteria for separate rating.  Accordingly, each should be afforded a separate disability rating.  There was no foot weakness which supported a rating under the diagnostic codes for weak foot (5277) or evidence of claw foot (5278).  The panel agreed that a 10% rating, but no higher, was justified for moderate bilateral symptomatic flatfoot coded 5276 (flatfoot, acquired), but this provided no rating advantage.    

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the bilateral foot condition.  

BOARD FINDINGS:  In the matter of the bilateral foot condition and IAW VASRD §4.73, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends 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 20161221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180003333, 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.

A copy of this decision has been provided to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
						      					
Enclosure