RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04587
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051223

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Multichannel Transmission Operator-Maintainer, medically separated for “bilateral foot pain” with a disability rating of 10%.  

CI CONTENTION:  “The Wounded Warrior Act.” 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 - 20051116	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Foot Pain	7122	10%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Bilateral Foot Pain.  The PEB combined the right and left foot conditions under a single disability rating, coded 7122 (cold injury residuals), and rated 10%.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the right and left foot conditions are presented with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s bilateral, cold weather foot pain condition began in February 2005 after performing military operations in the snow.  During the 4 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported loss of feeling in both big toes and nerve damage in both feet.  Physical examination revealed painful range of motion (ROM) of both metatarsal phalangeal joints and decreased sensation in all the toes of both feet.  There was near total loss of sensation over the bilateral great toes.  The MEB NARSUM examination, on the same day, noted complaints of constant foot pain, rated at 3/10, and increased to 7/10 with walking or cold exposure.  Physical examination showed sensory abnormalities with decreased pain and temperature sensation of the bilateral first toes.  He was noted to have blistering of the skin between his toes and sloughing of the skin on his feet.  The ROM of the right first through fifth digits showed flexion of 50 degrees each (normal 70) and extension of 30 degrees each (normal 45).  The ROM for the left digits revealed flexion of 60 degrees each and extension of 30 degrees each.  He had mild to moderate pain with all ROM measurements.  There was no VA examination proximate to separation in evidence. 

Panel members first agreed that the evidence reasonably justified that the functional limitations of the right and left foot conditions contributed to the CI’s inability to perform his military duties, and accordingly, separate disability ratings are recommended for each.  The panel next directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral foot condition 10%, coded 7122.  Members agreed that the symptomology and disability was the same for both feet with pain, numbness, cold sensitivity and locally impaired sensation, and thus warranted a 20% for each foot under code 7122.  There was no evidence of nail abnormalities, color changes, hyperhidrosis or X-ray abnormalities to justify the next higher 30% 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 right foot condition, and 20% for the left foot condition, each coded 7122.  

BOARD FINDINGS:  In the matter of the right foot condition, the panel recommends a disability rating of 20%, coded 7122 IAW VASRD §4.104.  In the matter of the left foot condition, the panel recommends a disability rating of 20%, coded 7122 IAW VASRD §4.104.  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	
Right Foot Pain	7122	20%	
Left Foot Pain	7122	20%	
COMBINED	40%	

The following documentary evidence was considered:

AR20190005784, 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 40% 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.