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DEPARTMENT  OF  THE NAVY
SECRETARY  OF  THE   NAVY  COUNCIL  OF  REVIEW   BOARDS
720 KENNON STREET SE STE 309 WASHINGTON  NAVY   YARD,   DC 20374

From:
To:

Director, Secretary of the Navy Council of Review Boards PD-2017-01116

IN  FErLY  HITF' T0:
1850
CORB:003
27 Feb 20

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 1 Apr 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy for appropriate action.

2.	On 21 February 2020, the Assistant General Counsel of the Navy (Manpower & Reserve Affairs) took action in your case by   accepting the recommendation of  the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 10% to 20% without re-characterization of your discharge.
3.	For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, has been forwarded to the Navy Personnel Command for appropriate changes to your personnel records and notification to you upon completion.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-01116 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20090325

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Ship's Serviceman Second Class, medically separated for “right foot pain” with a disability rating of 10%.

CI CONTENTION: The foot condition continues to worsen and negatively affects daily activities. 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 Medical Evaluation Board (MEB), but determined by the PEB 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. The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate. The panel’s assessment of the PEB rating determination is based on review  of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20081229	VARD - 20091001	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Foot Pain	5279	10%	Hallux Valgus, Right Foot	5280	0%	

20090626	
			Hammertoe, Right Foot	5282	0%		
Left Foot Intermittent Paresthesias	Cat II	Hallux Valgus, Left Foot	5280	0%		
		Hammertoe, Left Foot	5282	0%		
Intermittent Migraines	Cat III	Migraine Headaches	8100	30%		
Hypertension	Cat III	Hypertension	7101	0%		
Low Grade SIL (Cervical Dysplasia)	Cat III	Abnormal Cervical Cytology	7612	NSC		
Depressive Disorder NOS	Cat III	Dysthymic Disorder	9433	10%	20090627	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Chronic Right Foot Pain and (Category II) Left Foot Paresthesias and Numbness. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s foot conditions began  in  2006  after  wearing  steel toed  boots. Beginning  in  March  2007  the  CI  underwent

multiple foot surgeries of both feet including bilateral bunionectomy and bilateral hammertoe repair (resection of the distal phalanx of the little toes), along with scar revision and pin removals. During the 2 October 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported bilateral foot swelling, tingling and numbness with pain and numbness radiating up the right foot and frequent loss of balance due to the numbness. Physical examination revealed bilateral hallux deformity status-post surgery with numbness to the distal aspect of both feet. Pulses were normal and scars showed no signs of infection. The 30 October 2008 MEB NARSUM examination, 5 months prior to separation, noted complaints of bilateral pain and swelling of the feet. Physical examination showed bilateral numbness, tingling and tenderness over the first metatarsal phalangeal (MTP) joint post-surgical sites with numbness between the first and second toes on both feet. The examiner indicated the CI was unable to wear normal boots and had persistent foot pain. The diagnosis was chronic bilateral foot pain with paresthesias and numbness.

At the 1 October 2009 VA Compensation and Pension (C&P) examination, 7 months after separation, the CI reported pain, numbness and swelling in both feet, with weakness when walking. Physical examination showed non-tender scars on both feet without abnormal features or limitation of motion. Posture and tandem gait were normal and the CI walked on her heels. The feet did not reveal any signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear patterns. Neither foot had disturbed circulation, weakness, atrophy, heat, redness or instability. There was active motion in the MTP joints of the right and left great toes. There was no plantar tenderness, Achilles misalignment or abnormal arch of either foot, and ankle range of motion was normal. X-rays of the feet showed status post bunionectomies and resections of the right and left little toes.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right foot condition 10%, coded 5279 (metatarsalgia, anterior (Morton’s disease), unilateral, or bilateral). The VA rated the right and left foot hallux valgus conditions 0% each, coded 5280 (hallux valgus, unilateral), and rated the right and left foot hammertoe conditions 0% each, coded 5282 (hammer toe) based on the STR and C&P examinations, citing noncompensable evaluations are assigned unless the metatarsal head has been surgically resected or the condition is functionally equivalent to an amputation of the great toe; no painful scars and hammer toe did not affect all toes.

Panel members noted the right foot had hallux valgus surgery with metatarsal osteotomy (partial resection of the metatarsal head). Although there was an associated painful right foot, there was no evidence of Morton’s disease. However, given the post-operative hallux valgus, the inability to wear normal boots and the overall disability picture, the panel adjudged that the right foot warranted a 10% rating under dual codes 5279-5280. The PEB listed the left foot as a Category  II condition (related and contributing to the primary unfitting (right foot) condition). The panel’s first charge for this Category II condition is to assess whether it can be reasonably justified as separately unfitting for rating consideration. Panel members agreed that the subsumed Category II left foot condition was reasonably justified as separately unfitting. Both feet were listed on limited duty forms, both were implicated in the non-medical assessment and the STR indicated similar surgical histories, duty limiting restrictions and symptoms from each foot. The left foot had a surgical history of hallux valgus with metatarsal osteotomy and warranted a 10% rating under dual codes 5279-5280.

Contended PEB Conditions: Intermittent Migraines, Hypertension, Low Grade SIL and Depressive Disorder. The panel’s main charge is to assess the fairness of the PEB determinations that the contended conditions were not unfitting. None of the conditions were noted on limited duty forms or implicated in the non-medical assessment; and only the migraines and SIL were forwarded by the MEB. 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 there was insufficient cause to recommend a change in the PEB fitness determinations for any of the contended conditions, so no additional disability ratings are recommended.

BOARD FINDINGS: In the matter of the right foot condition, the panel recommends a disability rating of 10%, dual coded 5279-5280 IAW VASRD §4.71a. In the matter of the Category II, left foot condition, the panel recommends a separately unfit determination with a disability rating of 10%, dual coded 5279-5280, IAW VASRD §4.71a. In the matter of the contended intermittent migraines, hypertension, low grade SIL and depressive disorder, the panel 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 the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Foot Pain	5279-5280	10%	
Left Foot Intermittent Paresthesias	5279-5280	10%	
	COMBINED	20%