ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180000406 COUNSEL REQUESTS: requests an increase in his physical evaluation board (PEB) disability rating in order to qualify for medical retirement by showing his plantar fasciitis was unfitting with a 10 percent disability rating. COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 8-page Brief with 34 exhibit containing over 1400 pages FACTS: 1. Counsel states, citing applicable laws throughout his brief, in part: a. The applicant honorably served in the U.S. Army from March 2006 to December 2014. While serving in the Army, he worked primarily as a Motor Transport Operator. As a Motor Transport Operator, he was required to lift and load heavy equipment on trucks, and climb up and drive high clearance vehicles, like the Heavy Expended Mobility Tactical Truck and the Light Medium Tactical Vehicle. In the course of his service in the Army, he suffered plantar fasciitis in his feet and chondromalacia and patellar tendinopathy in his knees. During his Medical Evaluation Board (MB) and PEB, he was evaluated for his chondromalacia and patellar tendinopathy; however, he was not evaluated for the plantar fasciitis he suffered in his feet. This appeal aims to correct this error or injustice. He requests that his records be corrected to reflect that his plantar fasciitis made him unfit for military service and his plantar fasciitis was 10 percent disabling under the Department of Veterans Affairs (VA) Schedule of Rating Disabilities (VASRD), and thus, when combined with his 20 percent rating for his bilateral knee condition, he is entitled to a medical retirement. b. The applicant first began experiencing knee pain in May 2006 and was treated with physical therapy and rest. In June 2006, he prescribed Physical Therapy Education Self Care Training; Physical Medicine - Group Physical Therapy Session; Doctor Supervised Group Education Services; and Doctor Supervised Services Provision of Educational Supplies. In July 2007, despite treatment, he was placed on a permanent profile for his bilateral knee pain (chondromalacia patellae). From 2007 through 2014, he continued to experience knee pain requiring a permanent profile despite engaging in physical therapy, medications, at home exercises and orthopedic consults. By 2014, his bilateral knee condition was more debilitating than ever. An April 2014 MRI showed diffuse patellar chondral thinning and low grade chondromalacia patella, leaving him unable to perform his duty functions as he had pain with sitting, standing, rucking, running and wearing his vest. As a result of these continuing limitations, he was referred to the Integrated Disability Evaluation System (IDES). In July and October 2014, he underwent the MEB and Informal PEB Proceedings respectively, where he was evaluated for chondromalacia and patellar tendinopathy in both his right and left knee. The PEB found that his disabilities in his knees rendered him unfit because he was unable to perform activities required of a Motor Transport Operator. The PEB assigned him an aggregate disability rating of 20 percent, 10 percent for each knee. VA also rated him as having suffered a 10 percent static disability in each knee. c. The applicant first experienced debilitating foot pain, which was particularly acute with prolonged standing, in October 2010. As a result of his pain, he went to his primary care provider for a referral to the Podiatry department. On 2 December 2010, he was evaluated for his chronic foot pain and flat feet and was diagnosed with plantar fasciitis. The podiatrist prescribed custom foot inserts, molded to support his arches. In October 2014, despite using orthotic inserts and receiving physical therapy, the he reported "worsening" foot pain located at the base of the heel and radiating to the ankle that began upon waking up and increased throughout the day with prolonged standing, running, and marching. He was again referred to a podiatrist where he complained of constant "sharp stabbing pain" on weight bearing. The podiatrist, after examining him, reported that he suffered from bilateral foot abnormalities, including low arches, excessive pronation, bilateral Pes Planus, decreased dorsiflexion, and tenderness on palpation. In light of his foot pain he was released from the podiatrist with additional work/duty limitations. d. Not only did the applicant’s bilateral foot condition independently require the implementation of work limitations, but when considered in regard to his chondromalacia and patellar tendinopathy, his treating physician determined that his bilateral foot condition was permanently disabling. Specifically, his chondromalacia and plantar fasciitis made it painful for him to do the physical therapy treatment exercises prescribed to him. His physician reported that his prognosis was poor due his comorbidities; his physician "did not expect much progress as he is limited by knee pain, and will not be able to progress exercises much." As expected by his physician, he was unable to recover fully, in terms of walking, climbing, running and marching without pain, and full performance of his military duties. The applicant’s bilateral plantar fasciitis left him unable, as required, to load and unload the heavy supplies or equipment parts by lifting, pulling, and pivoting. His bilateral plantar fasciitis also made it impossible for him to safely scale the high clearance vehicles he was required to drive and maintain. In fact, even the act of driving the vehicles, with their heavy-duty gas and air brake pedals, caused him foot pain. Further, he was part of the sustainment brigade in the 101st Airborne. This meant that his unit had a very high operational tempo, involving a lot of movement, further exacerbating his condition. e. There is overwhelming evidence that the Army erred throughout the IDES process, resulting in the applicant’s limiting and painful bilateral plantar fasciitis not being found unfitting at the time of discharge. As such, he requests that the Army Board for Correction of Military Records (ABCMR) amend his PEB findings to add his bilateral plantar fasciitis as unfitting, providing him with the military retirement he was erroneously denied. It would be arbitrary and capricious for the Board to deny him the requested correction, and any failure to do so would be unsupported by substantial evidence and a violation of law and his rights. The applicant’s IDES process was rife with errors from the outset. First, despite a well-documented and long history of foot pain and a diagnosis of plantar fasciitis, neither the MEB nor the PEB evaluated his bilateral foot condition. His bilateral foot condition, which was mentioned throughout his medical history, should have been a cause for a referral to the MEB pursuant to Army Regulation 40-501, which requires MEB referral where a service member suffers from "plantar fasciitis or heel spur syndrome that is refractory to medical or surgical treatment, interferes with the satisfactory performance of military duties, or prevents the wearing of military footwear." Moreover, even if not a referring condition, the MEB, was required to "confirm the medical diagnosis for and document the full clinical information, including history, treatment status, and potential for recovery of the service member's medical conditions, that individually or collectively, may prevent the Service member from performing the duties of his office, grade, rank or rating, and state whether each condition is cause for referral to a PEB. Not only did Department of Defense and Army Regulations dictate that the applicant’s plantar fasciitis required referral to the MEB, but his own medical records include a statement from the podiatry clinic stating that his bilateral foot condition should have been evaluated during the IDES process for fitness of duty. f. Had the applicant’s bilateral plantar fasciitis been properly evaluated by the MEB, it would have been found to fail the medical retention standards set out in Army Regulation 40-50 501 (Standards of Medical Fitness). The applicant’s plantar fasciitis should have been found medically unacceptable because it prevented him from adequately performing his military duties and it was refractory to treatment. The applicant’s bilateral foot condition prevented him from prolonged standing, running and marching, which are fundamental requisites for satisfactory performance of military duties. The applicant’s plantar fasciitis should have also been found to fail medical retention standards since his July 2014 medical records plainly state that he suffered from "increased symptoms for the last 8 years, without much relief" despite engaging in physical therapy and wearing custom orthotics. Even more compelling evidence that his bilateral foot condition was refractory to treatment, and therefore failed medical retention standards can be found in a 2014 medical note where his physician determined that his comorbidities, coupled with the chronicity of his condition, left it unlikely that he would be able to recover, or even perform the exercises required to recover. Had the applicant’s bilateral plantar fasciitis been properly evaluated by the PEB, it would have been found unfitting since the preponderance of evidence unambiguously establishes that his bilateral plantar fasciitis left him unable to reasonably perform the duties of his office, grade, rank, or rating. Specifically, his bilateral plantar fasciitis prevented him from performing common military tasks, completing the Army Physical fitness test, deploying, and from engaging in the special tasks of his military occupational specialty. Counsel’s complete brief is available for the Board’s review. 2. The applicant’s Non-commissioned Officer (NCO) Evaluation Reports from 28 January 2012 through 16 January 2014, shows he passed his physical fitness test and his overall potential for promotion and/or service in positions of greater responsibility was rated as “Fully Capable.” 3. On 4 June 2014, the applicant was issued a permanent P3 profile due to bilateral knee pain. 4. A Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement, dated 3 July 2014, indicated, in part, the applicant’s medical conditions/limitations affect unit accomplishing mission and the commander did not recommend retaining him. 5. On 10 July 2014, a MEB found the applicant failed to meet retention standards and referred the applicant to a PEB due to right and left knee chondromalacia and patellar tendinopathy. 6. On 10 October 2014, a PEB convened and found the applicant unfit and recommended a disability rating of 20 percent and separation with severance pay due to right and left knee chondromalacia and patellar tendinopathy. He was found fit for the following conditions because the MEB indicates these conditions meet retention standards; does not indicate that any of these conditions cause profile limitations (functional activities a-h); and does not indicate that performance issues, in any, are due to these conditions: * left hand, distal index, middle, right, little finger contusions, resolved * rhinitis * hypertension * hiatal hernia * chronic sinusitis * hepatic cyst, benign * oligospermia * left shoulder strain * left hip strain * right foot plantar fasciitis * left foot plantar fasciitis * cervical strain * thoracolumbar strain * right foot pes planus, mild; left foot pes planus, mild * acute bronchitis * gastroesophageal reflux disease (GERD) * right index finger contusion with residual PIP loss of range of motion * scar, neck * right wrist sprain * right ear sensorineural bearing loss in the frequency range of 500-4000 Hz and 6000 Hz or higher frequencies * dry eye syndrome OU * adjustment disorder with mixed depression and anxiety, chronic * dyslipidemia * panic disorder without agoraphobia 7. On 20 October 2014, after being advised of the findings and recommendation of the informal PEB and receiving a full explanation of the results of the findings and recommendation and legal right thereto, the applicant concurred and waived a formal hearing of his case. He did not request reconsideration of his Department of Veterans Affairs (VA) ratings. 8. On 6 December 2014, the applicant was discharged under the provisions of Army Regulation 635-40, due to disability, severance pay non-combat (Enhanced). 9. On 20 March 2019, the Army Review Boards Agency (ARBA), medical advisor provided an advisory opinion. The ARBA medical advisor states, in part, a review of the available documentation found no evidence of a medical disability or condition that would support a change to the reason, rated condition(s), disability determination(s), disability rating(s), and/or combat relatedness) for the discharge in this case. The applicant had flat feet and/or symptoms consistent with plantar fasciitis during his active military service. Treated with physical therapy (home exercise program (HEP), orthotics (shoe inserts), proper shoe wear, weight loss recommendations (avoid overweight/ obesity), and/or NSAIDs (i.e. Motrin or similar) as needed. The applicant successfully completed his AFPTs. The applicant foot/feet condition did not reach a medical retention determination point. The applicant’s foot/feet condition was not permanently profiled. The applicant concurred with the foot/feet assessment (met retention standards, not unfitting) in the MEB NARSUM, MEB proceedings, Profile (did not include feet), and PEB proceedings. The applicant’s foot/feet condition clearly met medical retention standards and clearly was not Unfitting (either alone or in combination with his primary unfitting condition, bilateral knee pain). After comprehensive review of the medical and other records, the ARBA Medical Advisor concludes that there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability rating(s) recommended. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. On 28 March 2019, counsel was provided a copy of the medical advisory for comment or rebuttal. He did not respond. 11. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. 12. The Under Secretary of Defense Directive-Type Memorandum (DTM) 11-015, 19 December 2011, provides for IDES. The IDES is the joint Department of Defense (DOD) - VA process by DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service- connected disability 13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 14. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 15. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered applicant’s statement, his MEB and PEB proceedings, the resultant fitting and unfitting conditions and the conclusions of the advising official as it relates to his plantar fasciitis. After reviewing the evidence, the Board concurred with the advising official and, based on the preponderance of evidence, determined that the applicant had no additional unfitting conditions at the time of his separation; there was no error or injustice requiring a correction to the records. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 7/31/2019 X CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 3. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 5. DTM 11-015, 19 December 2011, provides for the Integrated Disability Evaluation System (IDES). The IDES is the joint Department of Defense (DOD) - VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability. a. Appendix 10 to Attachment 4 states within 15 days of receiving proposed disability ratings from the (D-RAS), the PEB would apply the ratings using the diagnostic code(s) provided by the D-RAS to the Service member’s unfitting conditions and publish the disposition recommendation. b. Appendix 11 to Attachment 4 (D-RAS Procedures), in effect at the time, stated: 1) Upon receipt of the case files (request for rating and service treatment record) of unfit Service members from PEB administration, the D-RAS determines whether the VA C&P disability examination report is adequate for disability rating purposes. 2) The D-RAS will rate the service member’s referred and claimed service- connected disabilities and provide a proposed rating decision, with rationale, to the PEB within 15 days of notification by the PEB administration staff that a service member is unfit. 3) Once the D-RAS has rated all unfitting conditions, the D-RAS will provide their proposed rating decision to the PEB. The D-RAS will defer rating all other conditions that require additional claim development in accordance with VA business practices and regulations. 4) Within 15 days of receipt from the PEB of a service member’s written request for a one-time reconsideration of a proposed disability evaluation assigned for unfitting conditions by VA, the VA decision review officer will consider any new documentation or information from the Service member and provide the PEB updated proposed ratings, if any. 5) This is a one-time “request for reconsideration” of the rating(s) from the D- RAS. Subsequent appeals of ratings to VA must occur when the Service member has separated, attained veteran status, and has been formally notified of the rating decision.