XXXXXXXXXX

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.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-05267
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070429

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, OH-58D Armament and Electrical Systems Repairman, medically separated for “chronic left foot pain” with a disability rating of 10%.  

CI CONTENTION:  Review all conditions.  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 – 20070125	VARD - 20070718	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Foot Pain	5279	10%	Degenerative Joint Disease, Left Foot	5010-5284	20%	20070324	
Dyspnea	Not Unfitting	Dyspnea	6699-6602	NSC	20070324	
Esophageal Reflux	Not Unfitting	Hiatal Hernia with GERD	7346	10%	20070324	
Left Ear Tinnitus	Not Unfitting 	Tinnitus, Left Ear 	6260	10%	20070315	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Left Foot Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent first surgery (resection of the medial navicular and talar head fenestration) in October 2004 with no relief.  He underwent another procedure in February 2006 (posterior tibial tendon transfer and cuneiform osteotomy) with no significant change in his pain.  A third surgical procedure was performed in June 2006 (calcaneal osteotomy) again with no improvement.  Post-surgical left foot and ankle X-ray in September 2006 documented post osteotomy changes in the calcaneus with fixation hardware in place.  

At the 21 September 2006 physical therapy (PT) clinic examination for the MEB range of motion (ROM) evaluation, 7 months prior to separation, the CI had bilaterally symmetrical ankle dorsiflexion and plantarflexion.  The ROM evaluation showed left ankle dorsiflexion of 9 degrees (normal 20) and plantar flexion of 50 degrees (normal 45).  The therapist noted normal ROM of all toes.  During the 22 September 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported left foot pain, tingling, numbness, swelling, loss of motion and difficulty walking.  He had been prescribed orthotics for both feet.  Physical examination revealed decreased ROM of the left foot and toes, inability to heel or toe walk and moderate symptomatic pes planus.  

The 20 November 2006 MEB NARSUM examination, 5 months prior to separation, noted complaints of chronic left foot pain.  The physical examination section summarized an orthopedics’ evaluation from 8 Aug 2006 documenting multiple well healed foot incisions and weakness of the left posterior tibial tendon.  The ROM evaluation showed 10 degrees of dorsiflexion and 20 degrees of plantar flexion; and no eversion or inversion.  The diagnosis was adult onset grade 3 left foot posterior tibial tendon dysfunction.  The 28 November 2006 ankle and foot clinic visit was for a second opinion for further surgery.  The assessment was chronic left posterior tibial tendon dysfunction and a custom Arizona brace (hinged) was ordered.  The brace was subsequently fitted on 15 February 2007.  

At the 24 March 2007 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported constant left foot pain, weakness, stiffness and swelling with standing or walking.  Physical examination showed a normal gait with no signs of abnormal weight bearing, and noted use of a corrective shoe device.  There was no evidence of pes planus.  There was left foot tenderness and painful ankle ROM with dorsiflexion to 15 degrees and plantar flexion to 35 degrees.  After repetitive use, ankle function was additionally limited by 10 degrees of each movement by pain [dorsiflexion 5 degrees, plantar flexion 25 degrees].  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left foot condition 10%, coded 5279 (metatarsalgia), citing essentially full ankle and foot motion.  The VA rated the left foot condition 20%, analogously coded 5010-5284 (arthritis due to trauma - foot injuries, other), based on the C&P examination, citing moderately severe symptoms of the left foot.  The panel deliberated the probative value of the examinations in evidence and noted that the Service ROM examinations did not evaluate repetitive motion, address DeLuca criteria and were more remote from separation than the more detailed C&P pre-separation examination.  The CI also had additional treatment visits and prescription and use of a hinged ankle brace following the NARSUM.  The panel therefore assigned a higher probative value to the C&P examination.  

The panel considered whether the VASRD code for other foot injuries (5284) provided for a higher rating (§4.7) as metatarsalgia coding does not fully cover the CI’s disability which involved posterior tibial tendon dysfunction, hind foot and ankle disability.  The panel noted the CI’s foot and ankle injuries, three surgeries with retained hardware, foot tenderness and moderately severe pain-limited ankle ROM on repetition.  After considering all the evidence regarding functional impairment, panel members agreed that the “moderately severe” level (20%) was supported.  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 condition, coded 5010-5284.  

Contended PEB Conditions:  Dyspnea, Esophageal Reflux, and Subjective Left Ear Tinnitus.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any 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 condition, the panel recommends a disability rating of 20%, coded 5010-5284 IAW VASRD §4.71a.  In the matter of the contended dyspnea, esophageal reflux and left ear tinnitus, the panel recommends no change from the PEB determinations 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	
Left Foot Pain	5010-5284	20%