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Dear XXXXXXXXXX:

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 and to the counsel you listed on your application; [name and address].

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-03463
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050323

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Automated Logistics Specialist, medically separated for “foot injury, left secondary to fracture distal phalanx left great toe coupled with hallux valgus” and “hallux valgus, right chronic,” rated 10% and 0%, respectively, with a combined disability rating of 10%. 

CI CONTENTION:  No specific contention made.  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 - 20041209	VARD - 20050722	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Foot Injury, Left 	5284	10%	Status Post Bunionectomy, Left Foot	5280	10%	20050427	
Hallux Valgus, Right Chronic	5280	0%	Status Post Bunionectomy, Right Foot	5280	10%	20050427	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Left Foot Injury and Right Hallux Valgus.  The separate conditions adjudicated by the PEB, as charted above, were clinically interrelated and associated with commingled evidence.  The panel is therefore presenting the total evidence, followed by a rating analysis incorporating the separate PEB coding and rating determinations.

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was diagnosed with bilateral hallux valgus (HV) with typical bunions at the first metatarsophalangeal (MTP) joints (base of the great toes).  She underwent a right bunionectomy in 1992 and a left bunionectomy in 1998.  The osteotomy screw on the left was removed in 2003.  In June 2004 (9 months before separation) she suffered a fracture (distal phalanx, non-displaced) of her left great toe.  This was treated by immobilization only, and follow-up X-rays confirmed a healed fracture and normal alignment.  She was referred for an MEB for bilateral foot pain in September 2004.

There was documentation in STR clinical entries of grossly normal to non-specifically decreased range of motion (ROM) of the ankles and feet, with the single exception of a physical therapy note that recorded significantly reduced dorsiflexion.  Other than moderately reduced left great toe extension, no hindfoot or forefoot ROM limitation was in evidence.  The most detailed foot examinations in evidence were from podiatry entries in October 2004.  These documented bilateral symptoms that were greater on the left, due to localized pain of the left great toe (suspected to be neuritis).  Both feet exhibited excessive pronation with weight bearing and abnormal angle measurements typical for HV, and these findings were more pronounced on the right.  There was bilateral “moderate” tenderness at the first MTP and limited painful toe extension that was characterized as symptomatic hallux limitus, left worse than right.  

The 15 November 2004 MEB NARSUM examination, 4 months prior to separation, documented chronic pain in the feet and lower legs secondary to HV, but did not differentiate left versus right severity or elaborate functional limitations.  The permanent L3 profile provided for a shoe waiver, prohibited running but permitted walking to self-pace.  The physical examination recorded a normal gait, bilateral HV deformities, tenderness over the first MTP joint on the left, and normal bilateral strength and neurovascular findings.  

The 27 April 2005 VA Compensation and Pension (C&P) examination, 1 month after separation, noted complaints of “residual pain in [the] bilateral first [MTP] joints, aggravated with standing [or] ambulation in excess of one-half hour,” but did not differentiate left versus right severity.  The physical examination recorded a normal gait without brace or assistive device, bilateral HV deformities (measured angle worse on right) and the absence of weakness or atrophy.  

The panel directed attention to its rating recommendations based on the above evidence.  The PEB rated the left foot condition 10%, coded 5284 (foot injuries, other), without citing VASRD §4.71a criteria.  The 10% criterion of code 5284 is for “moderate” disability, and the code offers ratings of 20% for “moderately severe” and 30% for “severe” disability.  The PEB rated the right foot condition 0%, coded 5280 (hallux valgus, unilateral), without citing criteria.  Code 5280 provides two rating descriptions, each conferring a rating of 10% (maximum under the code).  These are “operated with resection of metatarsal head” and “severe, if equivalent to amputation of great toe;” thus, the premise of the PEB’s 0% rating was that neither of these criteria were satisfied.  The VA rated each foot 10% under code 5280, based on the C&P examination, citing the criterion of surgery with resection of the metatarsal head.  

With regards to rating of the left foot, it was noted that the PEB code was directed at rating the recent injury rather than the HV.  The panel agreed that the overlapping pain from the injury and the chronic pain from HV could not be differentiated for separate fitness adjudication, nor could the two be separately rated without compromising VASRD §4.14 (avoidance of pyramiding).  Considering that 10% is the maximum rating for HV (as above), the panel judged that the PEB’s code 5284 was appropriate since it affords the option of higher ratings (IAW VASRD §4.7, higher of two evaluations).  The panel considered a higher rating under code 5284; but, it was agreed that, given the disability in evidence at separation and the nature of the injury itself, the severity could not be reasonably characterized as more than moderate for a rating higher than 10%.  There was no evidence for any ratable criterion or separately coded foot diagnosis that would justify a rating higher than 10% 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the left foot condition.

The panel next considered the fairness of the 0% rating for the right foot.  There was no clinical justification for application of code 5284 as applied for the left foot, and no evidence that would support a rating higher than 10% as discussed above for the left foot.  The panel deliberated whether a 10% rating for the right foot was justified under the above criteria of code 5280 (as opposed to the PEB’s 0%).  Although it was reasonable to conclude that the “severe ... equivalent to amputation” criterion was not sufficiently supported, members agreed that this was not true for the “operated with resection of metatarsal head” criterion (as conceded by the VA).  Although the technical details of the HV surgery for the right foot were not in evidence, it would arguably be overly speculative and unfairly rigid to contend that the 10% surgical criterion was not supported.  Of additional note, the service podiatry diagnosis of hallux limitus is analogous to the diagnosis of hallux rigidus; and, the latter is specified under a separate code 5281 that defaults to the 10% severe rating of code 5280.  In light of these considerations, members agreed that a 10% rating was fairly conceded.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the right foot condition under code 5280.

BOARD FINDINGS:  In the matter of the left foot condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the right foot condition, the panel recommends a disability rating of 10%, coded 5280 IAW VASRD §4.71a.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Foot Injury, Left	5284	10%	
Hallux Valgus, Right	5280	10%	
COMBINED 	20%