RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-00055
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20050808

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E7, Infantryman, medically separated for “chronic bilateral foot pain” with a disability rating of 10%.

CI CONTENTION:  “Nerve damage which was awarded 0%.  I paid out of pocket to have the test done to prove there is nerve damage.”  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 - 20050518	VARD – 20051130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Foot Pain	5099-5003	10%	Status Post Cheilectomy, 1st MP Joint, Left Foot Due to Hallux Limitus	5299-5280	10%	20050510	
			Status Post Consolidated Arthrodesis, 1st MP Joint, Right Foot Due to Hallux Limitus	5299-5280	10%	20050510	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Bilateral Foot Pain. The PEB combined the right and left foot conditions under a single disability rating, coded analogously to 5099-5003 and rated 10% 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 “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and 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 and Medical Evaluation Board (MEB) narrative summary, the CI had a history of hallux limitus (dorsal bunion that may advance to hallux rigidus) at the first metatarsophalangeal (MTP) joint of both feet.  He underwent three surgeries on the right foot: a reconstructive osteotomy (bone removal) in January 2000; an attempted arthrodesis (joint fusion) of the first MTP joint that developed into a psuedoarthrosis (false joint arising at site of nonunion) in April 2002; and a repeat arthrodesis of the first MTP joint in August 2002.  The CI also underwent two reconstructive osteotomies on the left foot. All surgeries failed to alleviate the CI’s bilateral foot pain. 

The 24 March 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of constant foot pain around the big toe from previous surgeries.   The CI could not run and had pain regardless of activity level; he did not take medication for the pain.  Physical examination showed no edema or discoloration.  The right big toe was in a significant elevated position with a flexion contracture at the interphalangeal joint. There was diffuse tenderness around the first MTP joint and metatarsal heads with additional pain over the lesser MTP joints and extending into the plantar aspect of the arch bilaterally.  There was no movement of the first MTP joint and there was tenderness over the dorsum of the right hallux interphalangeal joint with the head of the proximal phalanx very prominent.  When standing, the CI’s right forefoot had a significant inverted inclination.  There was tenderness on range of motion (ROM) testing of the right hallux interphalangeal joint.  The total ROM of the interphalangeal joint was 20 degrees of flexion, starting at 20 degrees and ending at 40 degrees.  X-rays showed consolidated arthrodesis of the first MTP joint with a pre-contoured plate in place and 5 screws.  The hallux was fused and an excessive amount of dorsiflexion was seen on the lateral view.  

The left foot also had tenderness in the same locations as the right foot with dorsiflexion of the first MTP joint to 20 degrees and plantar flexion to 10 degrees.  Ankle ROM was non-tender with, dorsiflexion to 2 degrees and plantar flexion to 50 degrees.  X-rays showed first MTP joint arthritic changes with narrowing and osteophyte formation laterally, and an osseous loose fragment at the lateral aspect of the first MTP joint with evidence of a cheilectomy (removal of bone spurs from the base of the big toe).

The 11 April 2005 commander’s statement noted the CI’s “painful feet” prevented him from performing military specialty duties to include running, jumping and marching.  During the 13 April 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported dates and types of surgery for each foot.  Physical examination showed fusion of the first MTP join with tenderness and ROM of 0 degrees; and a non-fused left first MTP joint with tenderness and 10 degrees of flexion and extension.  Bilateral ankle ROM was decreased with lateral malleolus tenderness on both sides.  

At the 10 May 2005 VA Compensation and Pension (C&P) evaluation, 3 months before separation, the CI reported bilateral big toe pain, stiffness and swelling for 13 years.   He had difficulty standing and walking for prolonged periods.  Physical examination showed normal gait and posture with no signs of abnormal weight bearing and no use of an assistive device for ambulation.  Bilateral scars of the first MTP joints measured 4 cm x 0.5 cm.  Both feet showed no tenderness, weakness, edema, atrophy or disturbed circulation.  There was no pes planus and the CI did not require shoe support.  A left foot X-ray was normal, but a right foot X-ray showed a plate and screws in the first MTP joint.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the left foot with the right foot condition and applied a single 10% rating coded 5099-5003 citing the US Army Physical Disability Agency pain policy.  The VA rated the right foot and left foot conditions 10% each, coded 5299-5280 (hallux valgus, unilateral), based on the C&P evaluation 3 months before separation, citing surgical intervention of both metatarsal heads with fusion of the first right MTP joint.

In this case, both feet were considered to fail retention standards, implicated by the NARSUM and the commander’s statement, and profiled.  The C&P evaluation noted the presence of bilateral scarring status-post surgeries of the first MTP joints.  Panel members agreed the evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either foot over the other.  Since undue speculation would be required to conclude that impairment from either foot would not have unacceptably interfered with the performance of military duties, members agreed that each foot was reasonably justified as separately unfitting.

Panel members based rating recommendations on the surgical intervention of the metatarsal head with fusion of the first MTP joint (right foot) and surgical intervention of the metatarsal head of the left great toe (left foot).  After due deliberation, considering all of the evidence, and mindful of §VASRD 4.3, the panel recommends a disability rating of 10% for the right foot condition and 10% for the left foot condition, coded 5099-5280 (hallus valgus, unilateral).   

BOARD FINDINGS:  In the matter of the bilateral foot pain condition, the panel unanimously recommends separately ratings adjudicated as follows: an unfitting right foot condition coded 5299-5280 and rated 10%, and an unfitting left foot condition, coded 5299-5280 and rated 10%, both IAW VASRD §4.71a.  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	
Right Foot Pain	5299-5280	10%	
Left Foot Pain	5299-5280	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record  

AR20180003284, 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