RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXX	CASE: PD-2017-01808
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20040715

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E3, Rifleman, medically separated for “stress fractures medial sesamoid second and third metatarsal, right foot” with a disability rating of 10%.

CI CONTENTION: Review of additional conditions (low back, radiculopathy, headaches, and migraines) not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) was requested.  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20040511	VARD - 20061005*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Stress Fractures Medial Sesamoid Second and Third Metatarsal, Right Foot	5283	10%	Residuals, Stress Fracture, Medial Fifth Sesamoid, Second, Metatarsal, and Third Metatarsal, Right Foot	5284	0%	20050126	
Lower Back Pain	Category III (Not Unfitting)	Lumbar Spondylosis and Degenerative Disc Disease	5239-
5242	10%	20050126	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 10%	
*	Original VA rating decision (VARD) is not in evidence and could not be retrieved. The date is approximate. Available VARD of 20140910 documents above codes and ratings effective 20040716.

ANALYSIS SUMMARY:

Right Foot Stress Fractures. According to the service treatment record and MEB narrative summary (NARSUM), the CI developed right foot pain following a strenuous march in January 2003. He was ultimately diagnosed by serial X-rays and bone scan with the stress fractures medial sesamoid second and third metatarsal, right foot. Despite a trial of casting and no weight bearing,

the pain persisted and the CI was unable to resume training. Follow-up X-rays demonstrated healed stress fractures and it was opined that surgery was not indicated.

A 13 January 2004 orthopedic addendum to the NARSUM, 6 months prior to separation, documented persistent right foot pain rated “moderate and constant” aggravated by marching and load bearing. The physical examination recorded a “slightly” antalgic gait without assistive device, no foot edema or tenderness, no deformity, and normal neurovascular findings. There was no clarification of range of motion (ROM), although normal (5/5) strength in all planes of motion was documented.

The 5 February 2005 MEB NARSUM examination, 5 months prior to separation, documented right foot pain rated “slight and constant” that prohibited “the regular marching and hiking that is required of an infantry soldier.” The physical examination recorded normal strength, neurovascular findings, and ROM along with tenderness localized to the sesamoid and second metatarsal.

The 26 January 2005 VA Compensation and Pension (C&P) orthopedic examination, 6 months after separation, documented daily pain rated 8/10 but without significant functional limitations. The physical examination recorded a normal gait and alignment, no tenderness or “pain on manipulation,” and normal ROM without painful motion or degradation with repetition. Measured ankle ROM was also normal in all planes without painful motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right foot condition 10%, coded 5283 (tarsal, or metatarsal bones, malunion, or nonunion). No rationale was cited, although the 10% criterion of code 5283 is for “moderate” disability. The code offers additional ratings of 20% for “moderately severe” and 30% for “severe” disability. The VA’s 0% rating, based on the essentially normal C&P findings, was under code 5284 (foot injuries, other). As per the rating chart footnote, the cited rationale was unknown, but the criteria and ratings for codes 5284 and 5283 are equivalent (as above).

Panel members agreed that the disability in evidence at separation could not be reasonably characterized as more than moderate in justification of a higher rating under either code 5283 or 5284. It was incidentally noted that an analogous designation would be more applicable for rating under either of those codes. No ROM limitation or any other ratable criterion was supported by the evidence that would justify a rating higher than 10% under any applicable code available in VASRD §4.71a. After due deliberation, considering all 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 Condition: Low Back Pain. The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting. The orthopedic addendum documented “a new complaint of low back pain” in December 2003, after the metatarsal stress fractures were diagnosed and while the CI was still under fairly rigid activity limitations imposed by his foot. There was no history of trauma or other precipitant, X-rays were normal, and the diagnosis was mechanical back pain. Both the orthopedic addendum and NARSUM rated the pain as “slight and constant.” Other than some paraspinal tenderness without spasm, both examiners recorded normal physical examinations of the spine and normal neurological findings.  Both examiners documented normal or near normal ROM in all planes.

Notwithstanding that the CI  was  a  Marine,  he  was  subject  to  an  Army  L3  profile  (dated  17 February 2004, 5 months before separation) that listed low back pain in addition to the right foot pain. It did not identify any physical limitations specific to the back such as bending, nor was there any other evidence for such limitations. The non-medical assessment (NMA) was not probative to separate fitness implications of the back versus the foot. The orthopedic addendum

offered no opinion regarding fitness for the back condition. The NARSUM specified, “His back pain limits his ability to carry any weapons or ammunition, which combined weight is greater than 20 pounds.” The examiner opined that the back condition failed Army retention standards (AR 40-501). Of some probative significance, the VA orthopedist opined and fully elaborated that the stated severity (constant 10/10 pain) was not congruent with observed findings and that there was no adverse occupational impact. The CI was employed full time as a bartender. The only functional limitation noted for the back was “does less running and less exercising.”

The panel acknowledged several arguments favoring a recommendation that the back condition was unfitting and service ratable. The NARSUM examiner opined that the CI’s inability to tolerate requisite load bearing was attributable to the back condition, and that the condition independently failed Army retention standards. The back pain was profiled along with the foot pain and the profile limitations were not compatible the physical requirements of military service.
Conversely, the panel considered that the above was mitigated by other factors. It was overly speculative to attribute functional limitations to the spine that were readily explicable by the foot condition only. Even though the physical requirements for an Army and Marine infantryman would logically be similar, the retention standards applicable to one branch of service are not wholly transferrable to another; and, more importantly, a medical opinion with regard to compatibility with retention standards does not translate into fit or unfit. Determination of fitness is solely a PEB prerogative that is based on objective performance evidence and overall (not just at a point in time) compatibility with continued military service. The foot condition was the primary precipitant of MEB proceedings, with the back condition arising as a secondary issue. There was no significant clinical acuity or pathology associated with it, no objective physical findings of significant functional import, and no corroboration from the commander that it impacted performance. The post-separation VA evidence indicated that objective performance limitations were not reliably linked to reported severity. Members ultimately agreed that there was not a preponderance of evidence to justify a conclusion that the back condition, in itself, would have caused the CI to be referred for an MEB and found unfit. After due deliberation, and in consideration of the preponderance of the evidence, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the lumbar condition.

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 lumbar condition, the panel recommends no change from the PEB determination 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.

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN   REPLY  REFER  TO:
1850
CORB: 003 20May20

From: 
Director, Secretary of the Navy Council of Review Boards

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr <ltd 16 Oct 18

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate action.

2.	On 20 March 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation  Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.