RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01639
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070519

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E5, Automated Logistical Specialist, medically separated for chronic pain in bilateral feet and elbows with a disability rating of 10%.  

CI CONTENTION:  A higher rating is requested for his feet, lower back, upper back, sciatic nerve pain, sleep apnea, posttraumatic stress disorder (PTSD) and skin disease.  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 - 20070222	VARD - 20080710	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain in Bilateral Feet and Elbows 	5099-5003	10%	Bilateral Metatarsalgia/Hallux Valgus	5279	10%	20071030	
			Bilateral Arm Condition*	5010	NSC	20071030	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20071030	
Left Renal Cell Carcinoma	Not Unfitting	Residuals Partial Nephrectomy ... Cancer	7528	40%	20071030	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	
* Overlapping conditions encompassing associated neuropathy were also determined to be NSC.

ANALYSIS SUMMARY:  

Chronic Pain in Bilateral Elbows and Feet.  The PEB combined the chronic pain in bilateral elbows and feet under a single disability rating, coded 5099-5003 (analogous to degenerative arthritis), 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 that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that 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.  The evidence for the bilateral feet and elbow conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

Bilateral Feet.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI injured his left foot in February 2004 during a mobilization to Iraq and then developed bilateral foot pain that necessitated early redeployment.  There were numerous STR entries, including podiatry, which documented a diagnosis of metatarsalgia with “mild” hallux valgus (bunion deformity of the big toe).  Surgery was not indicated and conservative treatment was unsuccessful.  Podiatry and other examiners documented bilateral metatarsal tenderness with no swelling or deformity and a normal gait.  There was ample documentation of normal and painless range of motion (ROM) of the ankles and foot joints.  There was no contrary evidence, no documentation of additional VASRD-ratable findings or other diagnosis, and X-rays were normal. 

The 20 December 2006 MEB NARSUM examination, 5 months prior to separation, noted complaints of constant bilateral foot pain rated 5-8/10 that prohibited running and was aggravated by prolonged walking or standing.  The physical examination recorded a normal gait, stating that the “only positive finding” was bilateral tenderness of the distal metatarsals, and noted “full [ROM] of the toes and ankles [with] no pain on ... motion.”  

The NARSUM diagnosis, and that submitted on the MEB’s DA Form 3947, was “bilateral foot pain due to metatarsalgia” that was judged to fail retention standards.  The profile designated bilateral foot pain as the sole basis for an L3 profile.  The commander’s performance statement referenced “foot injury” and cited limitations under the L3 profile, but was not probative to separate fitness implications of either foot.

At the 30 October 2007 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported constant bilateral foot pain rated 10/10, rendering him “unable to be on his feet for long periods of time.”  The physical examination (all findings bilateral) recorded no tenderness, weakness or malalignment of the ankle or foot; and, detailed the absence of all VASRD-ratable foot diagnoses except hallux valgus and bilateral metatarsalgia.  The examiner noted decreased ROM at the left great toe (no painful motion) with no other limitation of foot or phalangeal motion.  Measured bilateral ankle ROM was normal and specified the absence of painful motion.

The panel directed attention to its recommendations based on the above evidence.  The PEB’s consolidated rating specifically referenced the US Army Physical Disability Agency pain policy.  The VA rated the bilateral foot condition 10%, coded 5279 (metatarsalgia), based on the C&P findings and citing the criteria of the code as presented below.  

The panel first deliberated whether the bilateral foot condition could be justified as separately unfitting.  The panel noted that it was profiled, implicated in the commander’s statement, and did not fail retention standards.  It was clear that the above functional limitations, attributable specifically to bilateral foot pain, were incompatible with general soldiering requirements.  Members therefore agreed that the bilateral metatarsalgia was justified as separately unfitting and eligible for separate service rating.  

Having so agreed, the panel turned to deliberation of a fair rating recommendation for the condition.  The panel agreed that the diagnosis and pathology were very well aligned with code 5279, and 10% is the maximum rating offered for either unilateral or bilateral involvement.  The determination of separate unfitness for each foot would thus be rendered moot under this code.  The only other clinically supported code that could yield separate ratings (if conceding separate unfitness for each foot) is code 5280 (hallux valgus, unilateral), but the minimum 10% criteria are “severe, if equivalent to amputation of great toe” or “operated with resection of metatarsal head.”  The panel agreed that the evidence did not support the minimum criteria, thus separate 10% ratings under code 5280 could not be justified.  Consideration was also given to separate ratings under code 5284 (foot injuries, other) that offers a 10% rating for “moderate” disability (among higher ratings).  Members agreed, however, that the clinical presentation was so compellingly aligned with code 5279 that alternate rating (even analogously) under code 5284 was not sufficiently justified.  There was no ROM limitation, painful motion, or other objective findings that would support the minimum rating under any other applicable code available in VASRD §4.71a.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends bilateral metatarsalgia as a separately unfitting condition rated 10%, coded 5279.

Bilateral Elbows.  The STR documented an initial complaint of primarily right (dominant) elbow, forearm, and wrist pain after redeployment for foot pain.  Some entries related it to heavy lifting while deployed, but there was no note of any discrete injury or date of onset.  There were occasional sensory symptoms on the right, and the working diagnosis was cubital tunnel syndrome (ulnar nerve entrapment at the elbow), although serial electrodiagnostic studies (EMG/NCV) were normal.  All imaging was normal.  Multiple neurological examinations of the bilateral upper extremities were normal with full (5/5) motor strength and no objective sensory impairment.  There was some speculation regarding the diagnosis, some opinions that the symptoms did not match objective findings, and agreement that surgery was not indicated.

There was STR documentation of grossly normal bilateral elbow ROM in all planes, without note of painful motion.  There were no entries that documented any ROM limitation or other VASRD-ratable findings.  Many examiners addressed only the right arm and made a unilateral diagnosis.  One entry documented decreased measured grip strength on the right, but not on the left.  A rheumatologist documented “mild” medial elbow tenderness on the right but not the left, and diagnosed right medial epicondylitis (similar to tennis elbow).  Although there were numerous STR entries that referenced bilateral pain, all of them noted that symptoms were worse on the right.

The NARSUM documented “elbow pain in both sides,” without quantifying right versus left, although it quoted a chief complaint of “my elbow [singular] hurts.”  The pain was “rated 5-7/10 depending on activities... present at least 50% of the time [with] some numbness and tingling in the right forearm over the distribution of the ulnar nerve.”  There were no specific functional limitations cited.  The physical examination recorded bilateral elbow tenderness (medial epicondyles), a positive Tinel’s sign (pain to percussion over the ulnar nerve) on the right only, and normal neurological findings.  The examiner stated that bilateral elbow ROM “was completely normal and not limited by pain.”

The NARSUM diagnosis, and that submitted by the MEB, was “medial epicondylitis causing chronic elbow pain and right tardy ulnar palsy” that was judged to fail retention standards.  The profile designated “pain, numbness, and tingling right elbow” as the sole basis for a U3 profile.  The commander’s performance statement referenced “complications in both arms” and was not probative to separate fitness implications of either elbow.

The post-separation C&P examination (same as above) treated the overlapping neuropathic and musculoskeletal components (apparent from the above service evidence) as separate conditions.  Each of these descriptions specified “right greater than left” and noted intermittent sensory symptoms confined to the right forearm.  For each the CI rated the pain 10/10 and indicated that it prohibited heavy lifting.  The physical examination detailed all normal findings for the elbows and upper extremities, without tenderness, edema, instability, motor weakness, or sensory deficits.  Formal ROM measurements were normal in all planes for both elbows, specifying the absence of painful motion or ROM degradation with repetition.  For each of the related conditions the VA examiner specified “there is no diagnosis because there is no pathology to render a diagnosis.”  

The panel directed attention to its recommendations based on the above evidence.  As noted, the PEB consolidated rating under a single 10% disability rating, coded 5099-5003 (analogous to degenerative arthritis), and the VA did not service-connect any condition related to the upper extremities, citing the C&P examiner’s conclusions quoted above.  

The panel agreed there was unfitting upper extremity impairment based on the same rationales as elaborated above for the foot condition; but, had a significant reservation as to whether the left elbow could be reasonably justified as separately unfitting.  There was clearly a significant disparity in the clinical acuity and attendant functional impairment between the more severely affected dominant right arm and the non-dominant left arm.  Only the right arm was profiled, and the MEB diagnosis was more specific for the right arm than the left.  Furthermore there was a paucity of objective findings for either arm that could be linked to fitness.  Based on these facts, members ultimately concluded that a preponderance of the evidence indicated that the left elbow condition was not justified as separately unfitting.

The panel then considered the appropriate rating recommendation for the unfitting right elbow condition.  There was no evidence of ROM limitation or satisfactory evidence of painful motion that would support the minimum rating under any of §4.71a codes for limitation of motion at the elbow (5206, 5207, 5208, and 5213).  Likewise, 10% criteria were not satisfied for rating under code 5003 or any alternate code defaulting to the same criteria.  Finally, there was no ankylosis or fracture complication that would justify application of any of the remaining elbow codes (5205, 5209, 5210, and 5211).  

Having failed to justify the minimum rating under any §4.71a code, the panel turned to consideration of a rating for the neuropathy-type symptoms under VASRD §4.124a.  The applicable code is 8799-8716 (analogous to neuralgia of the ulnar nerve) which offers ratings of 10% for “mild,” 30% for “moderate,” and 40% for “severe” nerve impairment.  Members ultimately agreed that the pain and subjective sensory symptoms in evidence would reasonably support the mild criterion, but agreed that the moderate or higher ratings could not be justified given the lack of any objective sensory or motor impairment.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the right elbow condition under code 8799-8716; but, agreed that the left elbow condition was not reasonably justified as separately unfitting and not subject to service disability rating.

Contended PEB Conditions:  Obstructive Sleep Apnea (OSA) and History of Left Renal Cell Carcinoma without Metastases.  The panel’s main charge is to assess the fairness of the PEB’s determination that contended conditions were not unfitting.  In the matter of the OSA, the CI was diagnosed in 2005 and prescribed a nocturnal breathing assistance device (CPAP).  Subsequent STR entries documented a good response to titrated CPAP, and a final pulmonary note in 2006 stated that he was “overall reasonably well treated with CPAP.”  There were no STR entries for any issues related to OSA for the last 16 months of service.  The NARSUM related the CI’s history that his symptoms “have improved but not been completely cured” with CPAP.  The condition was listed on a P3 profile, mentioned in the commander’s statement, and judged to fail retention standards.  The profile listed the necessity of access to electricity; the commander did not elaborate functional limitations ascribed to OSA.  The PEB’s DA 199 decision stated that OSA was “improved with CPAP and there is no evidence that it adversely impacts the performance of his duties.”

Although the condition was profiled and judged to fail retention standards at the time of the MEB, the STR clinical evidence indicated that it was following a favorable course with no significant acuity over a protracted period leading up to separation.  Members considered whether there was sufficient performance-based evidence to support a conclusion that the condition would have prohibited further military service, given that the logistical burden imposed by the CPAP requirement was not itself an unfitting constraint.  Members ultimately agreed that the preponderance of evidence would not justify that conclusion.  

Regarding the history of left renal cell carcinoma without metastases, upon evaluation of painless hematuria the CI was discovered with a “tiny” cancer focus (clean margins) in an otherwise benign lesion (angiomyolipoma) of the left kidney.  In September 2006, 8 months before separation, he underwent a partial nephrectomy without complications.  The NARSUM stated, “He is asymptomatic now from the left kidney but has been advised that he will need follow-ups ....”  The condition was judged to fail retention standards, citing AR 40-501 (3-42), although those provisions do not appear to correlate with the evidence in this case.  The PEB rationale seemed to reflect this, stating that the condition required only surveillance.  The condition was also listed on a P3 profile and mentioned in the commander’s statement, although no profile limitations were specific to it and none were elaborated by the commander.  The VA’s 40% rating was premised on urinary frequency criteria as reported to the C&P examiner, but these symptoms were not corroborated by the STR and were denied in some provider entries.

In assessing the fairness of the PEB’s fitness determination for the renal condition, the panel questioned the rationale for the MEB’s assessment that it failed retention standards.  It was further noted that, while the condition was profiled and implicated by the commander, there were no specific functional limitations that could be derived from either of these sources, and none were evidenced elsewhere in the STR.  There was thus no performance-based evidence that the condition 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 the OSA and renal conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the PEB-combined bilateral foot and elbow conditions, the panel recommends that separate conditions be adjudicated as follows: an unfitting bilateral metatarsalgia coded 5279 and rated 10% IAW VASRD §4.71a, an unfitting right elbow condition coded 8799-8716 and rated 10% IAW VASRD §4.124a, and a left elbow condition determined not to be unfitting and not subject to disability rating.  In the matter of the contended obstructive sleep apnea and history of left renal cell carcinoma (status-post partial nephrectomy), 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	
Bilateral Metatarsalgia	5279	10%	
Chronic Pain and Ulnar Neuralgia, Right Elbow	8799-8716	10%	
COMBINED	20%	

AR20180014707, 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.