RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03166
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070717

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Petroleum Supply Specialist, medically separated for “chronic left foot and left ankle pain” with a disability rating of 10%.

CI CONTENTION:  The CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 – 20070406	VARD - 20070726	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Foot and Left Ankle Pain 	5099-5003	10%	Residual Left Ankle/Foot Scars from Gun Shot Wound 	5271	20%	20070509	
Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20070509	
Pes Planus Bilateral	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Left Foot and Left Ankle Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s left foot and ankle condition began in March 2006 after an accidental handgun discharge in the barracks that caused a through and through wound entering the dorsum of the left foot and exiting the plantar surface.  He underwent debridement of the wound in early April 2006.

The 14 November 2006 MEB NARSUM examination, 8 months prior to separation, noted complaints of "severe pain and tissue damage."  Physical examination showed a normal gait.  There was a well healed left foot gunshot wound scar.  He was unable to heel, toe, or duck walk secondary to left ankle pain.  There was left Achilles tenderness that radiated up into the left calf.  The 21 November 2006 MEB physical therapy examination, 8 months prior to separation, showed left ankle dorsiflexion to -20 degree (normal +20) and plantar flexion was 25 degrees (normal 45).  ROM was limited by pain in the muscles, not joints.  

At the 9 May 2007 VA Compensation and Pension (C&P) general examination, 2 months before separation, the CI reported pain due to the gunshot wound.  Physical examination revealed a normal gait.  Feet showed no abnormal weight-bearing signs.  There was left foot numbness present at the medial aspect which was served by the superficial peroneal nerve.  Left ankle dorsiflexion was 0 degrees and plantar flexion was 10 degrees; painful motion was not addressed.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left foot and ankle condition 10%, analogously coded 5099-5003 (arthritis, degenerative), citing the US Army Physical Disability Agency pain policy.  The VA rated the left foot and ankle condition 20%, coded 5271 (ankle, limited motion), based on the C&P examination, citing “marked” ankle limited motion.

The panel noted that through and through wounds of the foot are specifically addressed by VASRD code 5310 (muscle injuries of group X) which states the minimum rating for through and through wounds of the foot is 10%.  There was no evidence of severe injuries to the muscles of the dorsum of the foot, or moderately severe injuries of the plantar portions of the foot used for propulsion in walking, to justify the next higher 20% rating.  There was evidence of “marked” ankle dorsiflexion limitation to support a 20% rating using code 5271.  The panel noted it was not possible to combine the two aforementioned ratings without violating the principles of VASRD §4.14 (avoidance of pyramiding).  Additional STR and/or VA evidence does not support a higher rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the left foot and ankle condition, coded 5271.

Contended PEB Conditions:  Sleep Apnea and Bilateral Pes Planus.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The sleep apnea condition was profiled, but not implicated in the commander’s statement or judged to fail retention standards.  The only restriction from the sleep apnea was the CI had to have access to electricity.  The bilateral pes planus condition was not profiled, implicated in the commander’s statement, or judged to fail retention standards.  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 any of the contended conditions, so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the left foot and ankle condition, the panel recommends a disability rating of 20%, coded 5271 IAW VASRD §4.71a.  In the matter of the contended sleep apnea and bilateral pes planus conditions, 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.

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Left Foot and Ankle Pain	5271	20%	

The following documentary evidence was considered:

[AR NUMBER], 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.

Enclosure