RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01471
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20080602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, AH-64D Armament/Electronics/Avionic Systems Repairer, medically separated for “chronic arthralgia, right 1st metatarsal cuneiform and 1st metatarsophalangeal joint” 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 – 20080317	VARD – 20090304 and 20090318	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Arthralgia, Right 1st Metatarsal Cuneiform and 1st Metatarsophalangeal Joint	5099-5003	10%	Residuals of Right Hallux Valgus Surgery	5280	10%	20080515	
Depression	Not Unfitting	Mood Disorder with Mixed Depression and Anxiety	9434	30%	20080515	
HIV Positive	Not Unfitting 	HIV	6351	0%	20080515	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Right First Metatarsal Cuneiform and First Metatarsophalangeal (MTP) Joint Arthralgia.  According to the service treatment record and MEB narrative summary (NARSUM), the CI had right foot pain at the first MTP joint for several months with no injury or trauma.  He underwent a Lapidus procedure (repositioning of the 1st metatarsal and fusing it with the medial cuneiform) and bunionectomy on 31 July 2006.  Orthopedic hardware was removed on 11 June 2007, but he continued to have pain and was diagnosed with nonunion of the attempted fusion.  He was then treated with a bone stimulator which resulted in successful fusion of the first metatarsal with the medial cuneiform, but did not resolve his pain.  

During the September and October 2007 MEB examinations (recorded on DD Forms 2807-1 and 2808), 7 and 8 months prior to separation, the CI reported that he was unable to run, walk or stand for longer than 10-15 minutes without causing swelling.  Physical examination showed tenderness of the right first metatarsal and medial longitudinal arch and an antalgic gait; the CI was unable to perform a toe walk.  
  
The 18 January 2008 MEB NARSUM examination, 4 months before separation, noted complaints of foot pain that interfered with sleep, and on a “bad day,” made it difficult for the CI to walk.  He was only able to carry 15 pounds and stand for a maximum of 30 minutes before his foot pain became distracting.  He was unable to wear a military boot on his right foot, and could not run, jump, climb, march, or perform push-ups or sit-ups.  Physical examination showed a normal gait.  Active range of motion (ROM) of the right first MTP joint was dorsiflexion of 2 degrees, decreased due to pain, and active plantar flexion of 0 degrees.  

At the 15 May 2008 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported right foot pain, stiffness and swelling.  Physical examination showed a normal gait with tenderness of the right medial and dorsal foot at the first metatarsal extending proximal to the area of the bunion surgery scar.  There were no other foot or toe deformities.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition 10%, analogously coded 5099-5003 (arthritis, degenerative), citing limitation of motion with dorsiflexion to 2 degrees.  The VA also rated the right foot condition 10%, coded 5280 (hallux valgus), based on the C&P evaluation, citing resection of the metatarsal head or severe hallux valgus if equivalent to amputation of the great toe.  Members noted that the only rating available for code 5280 is 10%.  The panel then considered all other foot codes and found no evidence of flatfoot (5276) or claw foot (5278) or nonunion (5283).  The panel also considered a rating under code 5284 (foot injuries, other), but members agreed that the degree of disability did not rise to higher than a moderate level, and that this did not constitute a rating benefit to the CI.  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 right foot condition.  

Contended PEB Conditions:  Depression and HIV Positive.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Neither one of the conditions were profiled, implicated in the commander’s statement nor judged to fail retention standards.  The 14 December 2007 psychiatric consult noted the CI experienced depressive symptoms after discovering he was HIV positive, was managed with medication, and that the symptoms did not interfere with his ability to perform in a military setting.  There was no performance-based evidence from the record that either 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 determination for either of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the right foot condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended depression and HIV positive conditions, 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.  Therefore, the panel recommends 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 20170217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

AR20180004887, 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.

Sincerely,					      
Enclosure