RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02766
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve O3, All Source Intelligence Officer, medically separated for “chronic right forefoot pain” with a disability rating of 10%.  

CI CONTENTION:  The condition is still symptomatic.  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 - 20061020	VARD - 20070425	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Forefoot Pain 	5299-5279	10%	Bunions, Right Foot 	5284	20%	20070214	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70% 	

ANALYSIS SUMMARY:  

Chronic Right Forefoot Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent surgery with Youngswick distal osteotomy of the first metatarsal and Akin procedure of the proximal phalanx of the right hallux on 13 April 2004.  Post-surgical X-rays showed first metatarsal healing and proximal phalanx osteotomies.  A bone stimulator was prescribed for a nonunion of the base of the proximal phalanx of the right first metatarsophalangeal (MTP) joint.  Surgical K-wires were removed; however, the CI had pain and was unable to weight bear on her foot and used a postoperative shoe and crutches.    
On 14 April 2005, the CI underwent a right foot first MTP arthrodesis with placement of a plate and screws.  She developed a right big toe (hallux varus) deformity related to the procedure with continued pain in the same region as prior to surgery.  Despite casting and splinting, the CI had a nonunion with osteopenia (decreased mineralization) of the right first MTP joint region with osteopenia extending throughout the remainder of the right forefoot and midfoot.  

The CI underwent another surgery on 9 September 2005, which consisted of hardware removal and first MTP joint re-arthrodesis with angular (hallux varus) correction.  However, postoperatively she had shortening of the hallux and continued to have pain in the operative area as well as the remainder of the right foot, and she continued to be non-weight bearing.  A crease in the right big toe MTP joint developed postoperatively and became macerated, fissured and infected.  Treatment consisted of topical gentian violet.  On examination on 27 January 2006 the CI had a shortened fused right great toe with a wound at the MTP fold and significant disuse atrophy of the right calf and trophic skin of the right foot.  The CI was still non-weight bearing with her foot in a 3D boot and used crutches.  She was hypersensitive to touch diffusely of the right ankle, foot and second to fifth toes.  The redundant skin fold and fissure were surgically removed on 20 April 2006.  Further revision of the metatarsal was deferred.  

During the 23 June 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported using crutches, cane and a 3D boot.  Physical examination revealed tenderness over the first metatarsal head and dorsum of the great toe.  There was decreased range of motion (ROM) of the toes of the right foot and the right great toe was short secondary to surgical reduction.

At the 12 July 2006 MEB NARSUM examination, 5 months prior to separation, the CI was unable to perform any weight bearing activities nor was she able to wear shoes or boots, and had to remain in the 3D boot with the use of either crutches or a cane secondary to severe pain in her right foot.  Physical examination showed dorsal pedis and posterior tibial pulses were 1/4 bilaterally.  Light touch was intact in both feet; however, there was hypersensitivity to dorsal, plantar and medial aspects of the right forefoot in its entirety.  Muscle strength was normal in the feet and ankles except with inversion against resistance of the right foot, which was 4/5.  There was full ROM of both ankles and subtalar joints without pain or crepitus.  She had an antalgic gait and attempted to weight bear on the right foot on the lateral column as well as the heel with minimal weight bearing on the medial column of the right foot.  The incisions on the base of the right hallux and the dorsal medial aspect of the right medial forefoot were well-healed.  Because of continued right foot pain (complex regional pain syndrome), the CI underwent a right lumbar sympathetic block on 6 September 2006.  Pain relief lasted only a couple of hours. 

During the 14 February 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported squeezing, burning, oppressing, sharp, and throbbing pain in the first toe with a severity of 8/10.  The CI required crutches for ambulation because of pain in the right foot.  Physical examination showed a foreshortened right great toe by 2.0 cm that was very tender with no ROM.  The ROM of the right ankle was 10 degrees dorsiflexion (normal 20) and plantar flexion 20 degrees (normal 45).  Examination of the right foot revealed painful motion, edema, weakness and tenderness.  She had limitations with standing and walking because of pain when she placed the right foot on the floor and she required an orthopedic splint boot.  X-rays of the right foot dated 14 February 2007 showed status post bunionectomy and ankylosis of the first MTP joint with some swelling at the level of the first metatarsal.  

A note dated 6 March 2007 indicated she continued to use a boot and walked on the outer edges of her foot when ambulating.  She required crutches when ambulating for long periods of time and used a cane on occasion around the house.  On examination she had dyesthesic pain to light touch along the great toe, both on the dorsal and plantar surfaces, and she was unable to flex or extend the great toe.  The examiner’s diagnoses were complex regional pain syndrome involving the right foot and great toe and history of hallux rigidus that required multiple surgeries with inadequate control of pain in her right big toe.  X-rays of the right foot to rule out nonunion of the right first ray demonstrated mild diffuse osteopenia  and an arthrodesis of the first MTP joint with complete bony union at the surgical site with two screws in place.  There was also moderate foreshortening of the first toe of the right foot.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition 10%, analogously coded 5299-5279 (metatarsalgia, anterior), citing “no significant loss of ankle motion but ambulation is restricted as are all functional activities.”  The VA rated the right foot condition 20%, coded 5284 (foot injuries), based on the C&P examination, citing foot injury resulting in moderately severe symptoms.  

The panel noted the CI underwent four surgical procedures on the right foot, was limited in weight bearing, and was unable to wear a shoe on the right foot due to continued use of a 3D boot.  Furthermore she used crutches prior to separation and a cane at home and was diagnosed as having complex regional pain syndrome that required the use of medication including a narcotic on a regular basis.  The PEB rated the disability using code 5279; however, because of the multiple surgeries the CI had foreshortening of the toe, continuous pain, and an inability to bear weight except on the lateral foot.  Furthermore, the PEB indicated the CI had restricted ambulation and difficulty with all functional activities.  Because she was still using crutches and was taking a narcotic at the time of separation, the VA rated the condition 20% using code 5284.  However, the use of the crutches and pain medication continued unabated beyond the VA C&P examination suggesting that the foot injury and the development of the complex regional pain syndrome as a result of the multiple surgeries was closer to severe than moderately severe, which warrants a 30% rating using code 5284.  To rate the complex regional pain separately would invoke pyramiding IAW VASRD §4.14, which is to be avoided.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 30% for the chronic right forefoot condition, coded 5284.  

BOARD FINDINGS:  In the matter of the chronic right forefoot condition, the panel majority recommends a disability rating of 30%, coded 5284 IAW VASRD §4.71a.  The single voter for dissent recommends modification to 20% but did not elect to submit a minority opinion.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Forefoot Pain 	5284	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170424, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

AR20180008677, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure