RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX 	CASE:  PD-2020-00109
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080509

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Aircraft Pneudraulics Repairman, medically separated for “cold injury, with amputation of the distal phalanx of the right great toe” with a disability rating of 10%.  

CI CONTENTION:  Given a higher rating by the VA for the toe condition.  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 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 - 20080328	VARD - 20081210	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cold Injury, with Amputation of the Distal Phalanx of the Right Great Toe	7122-5171	10%	Amputation, Distal Phalanx, Right Great Toe	5171	30%	20081210	
			Residuals, Cold Injury, Right Foot	7122	20%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Cold Injury, with Toe Amputation.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered a frostbite injury confined to his right foot in February 2007.  Subsequent provider entries documented complete resolution except for necrosis of the distal great toe (exposing distal phalanx, no proximal involvement).  He underwent a partial amputation above the interphalangeal joint and below nail bed with flap coverage of the exposed bone on 12 April 2007.  Post-operative STR entries noted good surgical wound healing, mild sensory impairment of the stump, normal range of motion (ROM) of the ankle and foot joints, and no color changes.  There was no gait impairment, but orthotics were dispensed for improved balance.  There was no record of nail abnormalities, hyperhidrosis, or any other VASRD-ratable findings, and X-rays demonstrated “minimal” demineralization (opined as possible “residual disuse osteoporosis”) of the proximal great toe joint without degenerative changes.  

The 31 May 2007 MEB NARSUM examination, 6 weeks after surgery and 11 months prior to separation, documented nonspecific right foot pain forcing a slower pace (related to balance and propulsion issues and before the prosthetic was dispensed) and exacerbated by “prolonged distance walking or standing for more than an hour.”  The NARSUM referenced the MEB DD Form 2808 physical examination the same day, which noted only the partial amputation and indicated grossly normal skin and neurologic findings.  The MEB submitted the toe amputation and the frostbite as separate conditions, each opined to fail retention standards.  

The 19 November 2008 VA Compensation and Pension (C&P) examination, 6 months after separation, recorded “intermittent [and] mild” pain, stiffness, and numbness that was worsened by prolonged standing (1-3 hour tolerance), walking (1-3 mile tolerance), and cold exposure.  The examiner opined that there were “no significant effects” on the CI’s full-time security job or daily activities, and the prosthetic was not in use.  The physical examination recorded a normal gait, with good balance and propulsion, and no ROM limitation, pain with manipulation, swelling, tenderness, hyperhidrosis, wound complication at the amputation site, or nail changes (possible exception with the right great toenail, although not clear).  There was no decreased sensation or motor weakness of the affected great toe, and no change in color except for the right great toe being “pinker than the other toe.”  An X-ray demonstrated “mild diffuse degenerative changes” without elaboration or note of other pathology except for the partial amputation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cold injury/right great toe amputation 10%, coded 7122-5171 (cold injury residuals- amputation of great toe).  Although not elaborated, the PEB’s implied rating was for the amputation only under the 10% criterion of code 5171, i.e., great toe amputation “without metatarsal involvement.”  The VA conferred separate ratings under the same codes, with 30% under code 5171 for the amputation, and 20% under code 7122 for the cold injury residuals.  The VA rater cited the 30% criterion of code 5171 for great toe amputation with “removal of the metatarsal head,” and the 20% criteria of code 7122 for “pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis).”  The rationales regarding the applied evidence were not elaborated.  

There was no ROM limitation, specified painful motion, or other ratable criteria that would support more favorable rating under any alternative VASRD §4.71a foot or joint codes; thus, the panel agreed that its recommendation options should be confined to codes 5171 and/or 7122.  Code 5171 offers only the 10% and 30% ratings that are quoted above.  The anatomy of the amputation was unequivocally aligned with the 10% criterion, and it is unclear how the VA justified the 30% criterion.  Code 7122 offers a 10% rating for “arthralgia or other pain, numbness, or cold sensitivity,” and the highest 30% rating specifies the 10% criteria plus “two or more” of the criteria detailed above for the 20% rating.  Importantly, Note I of code 7122 stipulates that finger or toe amputations should be rated separately.  

The panel first deliberated whether the distal amputation merited its own rating under code 5171 or whether it should be rated solely to satisfy the “tissue loss” criterion for a single rating under code 7122.  Panel members agreed that the amputation, albeit only partial, should be conceded for rating under code 5171, as recognized by both the PEB and VA, and that separate ratings were mandated with a maximum supported rating under code 5171 of 10% as explained above.  The panel then deliberated the most appropriate separate rating under code 7122, and agreed that, at minimum, the 10% criteria were satisfied.  When considering whether any of the higher rated criteria were reasonably documented at separation, it was noted that the tissue loss, equivocal color changes (VA examination only), and sensory loss were confined to the intact great toe.  Thus, panel members agreed that these criteria, even if conceded based on the equivocal evidence, could not be credited for rating under code 7122 without violation of VASRD §4.14 (avoidance of pyramiding), since any associated disability was intrinsic to the separately rated amputation.  The criteria for nail abnormalities and hyperhidrosis were countered by the evidence.  While the service X-rays suggested some residual osteoporosis, this was not in noted at the time of the VA X-rays.  The latter demonstrated the development of mild degenerative changes, but it would be overly speculative to interpret that as ratable osteoarthritis present at separation.  The panel thus concluded that separate ratings for the amputation and cold injury residuals were indicated, but agreed that no rating higher than 10% for either of them was sufficiently supported.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends that the right foot cold injury with great toe amputation be separately rated at 10% under code 5171 and 10% under code 7122.  

BOARD FINDINGS:  In the matter of the right foot cold injury with great toe amputation, the panel recommends separate disability ratings of 10% coded 5171 IAW VASRD §4.71a, and 10% coded 7122 IAW VASRD §4.104.  There are no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Distal Amputation, Right Great Toe	5171	10% 	
Residuals of Frostbite Injury, Right Foot	7122	10% 	
COMBINED	20% 	

AR20200009862, 

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.