RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE: PD-2017-03912 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20080203

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Aviation Structural Mechanic Instructor, medically separated for “hammertoe deformity digits, two, three and four bilaterally” with a disability rating of 10% each for the right and left foot, with a combined disability rating of 20%.

CI CONTENTION: Review requested of the unfitting conditions as well as 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 EB), 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 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 - 20071022	VARD - 20090303	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Hammertoe Deformity Digits, Two, Three and Four Bilaterally	5282	10%
+10%
20%	Left Foot Hammertoe Deformity with Cutaneous Sensory Deficit and Osteoarthritis of the Toes	5010-5201	10%	20090218	
Complications of Bilateral Hammertoe Surgery on the Patient’s Feet	
Cat II	Right Foot Hammertoe Deformity with Cutaneous Sensory Deficit with Osteoarthritis Toes, History of Plantar Fasciitis	
5010-5282	
10%	
20090218	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Bilateral Hammertoe Deformity. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI had a history of bilateral hammertoe deformities (bending or curling downward of the toes). He underwent two separate surgical procedures to correct the right foot deformities in February 2007 and for the left foot in April 2007. The 3 October 2007 MEB NARSUM examination, 4 months prior to separation, noted that despite numerous post- operative treatment modalities, the CI continued to experience bilateral foot pain as well as a recurrence of some hammertoes. There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the bilateral hammertoe conditions 10% for each foot, coded 5282 (hammertoe) with a combined rating of 20%, and listed “complications of bilateral hammertoe surgery on the patient’s feet” as a related diagnosis (Category II) contributing to the disability in this case. Panel members agreed that this additional diagnosis was not a separate physical condition which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding). The VA rated the right and left foot conditions 10% each, dual coded 5010-5282 (traumatic arthritis-hammertoe), based on the C&P examination citing “hammer toe for all toes on one foot or for painful or limited motion of a major joint or group of minor joints and may be applied once to multiple joints if there is no limited or painful motion.” The panel noted that the specific unilateral code for hammer toe is 5282 with two ratings: 0% for single toe involvement and 10% for all toes. Clearly, the STR and MEB identified hammer toes of both feet, but without involvement of all toes, thus the 10% rating level was not applicable. In accordance with DoDI 6040.44, the panel may not recommend a rating lower than that adjudicated by the PEB. Therefore, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB’s adjudication for the bilateral hammertoe condition.

BOARD FINDINGS: In the matter of the bilateral hammertoe condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. 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.

2	PD-2017-03912

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 dtd 6 Nov 19

I. 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 ofno 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.