RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxx	CASE:  PD 1300128
BRANCH OF SERVICE:  Army	BOARD DATE:  20130625
Date of Permanent SEPARATION:  20030930		

SUMMARY OF CASE:  Data extracted from the available evidence of record reflect that this covered individual (CI) was an active duty SGT/E-5 (75B2P, Personnel Admin Specialist) separated for back and bilateral foot conditions.  He injured his back in 1997 and was treated conservatively, without surgery.  He experienced bilateral foot pain due to hammertoe deformities and received right foot surgery in 1999.  He underwent left foot surgery in 2002 for a bunion and hammer toe repair.  These back and foot conditions could not be rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.   He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic back pain with degenerative disk disease (DDD) at L5-S1, bilateral foot pain, and stress and anxiety conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB adjudicated chronic back pain and bilateral foot pain as unfitting rated 10% and 0% respectfully, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the back and US Army Physical Disability Agency (USAPDA) pain policy for the bilateral foot condition.  The stress and anxiety conditions was determined to be “not disqualifying” by the PEB.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “VA gave higher rating for disability”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting back pain and bilateral foot pain conditions are addressed below.  The not unfitting stress and anxiety, as per the contention, was not service-connected by the VA and thus is not within the DoDI 6040.44 defined purview of the Board.  These, and any other conditions or contentions not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.  

RATING COMPARISON:

Service IPEB – Dated 20030730	VA* - (~10 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5295	10%	LLE Radiculopathy...	8720	10%	20040715	
			RLE Radiculopathy...	8720	10%	20040715	
			Lumbar Spine DDD L5-S1	5242	20%	20040715	
Bilateral Foot Pain	5099-5003	0%	S/P Left Austin Bunionectomy...	5280	10%	20040715	
			Scar, Left Foot...	7805	0%	20040715	
			S/P surgical repair 2nd Digit Right Foot	5280-5282	0%	20040715	
			Scar, Right Foot...	7805	0%	20040715	
Stress & Anxiety	Not Unfitting	No VA Entry	20040715	
No Additional MEB/PEB Entries	Other x 11	20040715	
Combined:  10%	Combined:  60%	
*Derived from VA Rating Decision (VARD) dated 20041025 (not proximate, but within 12 months post separation)

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him, but must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veteran Affairs (DVA) operating under a different set of laws.

Chronic Back Pain Condition.  The CI developed low back pain following a parachute jump in 1997.  He was evaluated, ruled out for a surgical problem, and underwent extensive physical therapy (PT) and trials of various medications.  He had no incapacitating episodes, and denied radicular symptoms.  Despite aggressive conservative treatments, he continued to have pain, and was placed on a permanent L3 profile in September 2001.  Magnetic resonance imaging in November 2001 showed a small disk herniation and degenerative changes at the L5-S1 level, without neural impingement.  At the MEB exam of 20 May 2003, approximately 4 months before separation, the CI reported ongoing back pain.  Tenderness to palpation was noted at the lumbar spine, with positive leg raise testing.  There were no neurologic deficits.  At the VA Compensation and Pension (C&P) examination of 29 July 2003, 2 months before separation, the CI reported the same back symptoms.  On examination there was no muscle spasm and gait and spinal contour were normal.  Range-of-motion (ROM) examination showed flexion of 95 degrees, extension 35 degrees, right and left lateral flexion of 40 degrees, and right and left rotation of 35 degrees.  There was no pain with repetitive motion, evidence of spasm, neurologic abnormalities, or gait disturbance.  At another C&P examination of 15 July 2004, approximately 10 months after separation, the CI reported essentially unchanged symptoms.  On examination back flexion was 40 degrees, extension 30 degrees, and right and left lateral flexion 25 degrees.  The CI exhibited some limitation of motion due to pain.  There was no indication of spasm or gait disturbance.  

The Board directs attention to its rating recommendation based on the above evidence.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board notes that the PEB, held on 18 July 2003, utilized an older set of spine rules to adjudicate the CI’s back condition.  However, based on the CI’s date of separation of 30 September 2003, the Board must use the current §4.71a rating standards.  The PEB rated the CI’s condition at 10%, citing characteristic pain on motion consistent with rating using the lumbar strain code 5295 (PEB coded the condition 5299-5295).  The VA, in its rating decision of 7 October 2003, utilized code 5242, degenerative arthritis of the spine, as per the current VASRD rating guidelines in effect at that time.  The VA rating decision dated 29 July 2003, 2 months proximate to the date of separation, rated the CI’s condition at 0%, based upon an examination that revealed neither painful nor limited motion.  VA rating decision dated 25 October 2004, within a year post separation, cited the C&P examination from 15 July 2004 with a significantly decreased ROM consistent with a rating of 20%.  This examination also noted bilateral radicular symptoms/findings that were not present on prior evaluations.  As such, the Board found this examination to be inconsistent with the CI’s history leading up to, and including the PEB.  The CI’s ROM just proximate to the separation was indicative of a 0% rating, and the 10% rating was assigned by the PEB for pain only, under the VASRD criteria in effect at the time.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes which would provide for additional or higher rating under the current general rating formula for diseases and injuries of the spine.  There is not reasonable doubt in the CI’s favor, therefore, to justify a Board recommendation for other than the 10% rating assigned by the PEB for the back condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic back pain condition.
	 
Bilateral Foot Pain Condition.  The PEB combined the left foot pain and right foot pain as a single unfitting condition coded analogously to 5003 and rated 10% with application of the USAPDA pain policy AR 635-40 B24.f.  The 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 or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints, is permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board 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 Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The CI had a long history of bilateral foot pain, with hammertoe deformities.  He underwent right foot surgery in December 1999 for repair of the hammer toe deformity of the right second toe.  Following recovery from surgery, the records fall silent with regard to right foot pain.  A service treatment record (STR) entry in April 2001 noted the CI had returned to running and the gait was observed to be normal on examination.  The CI underwent left foot surgery in April 2002 including bunionectomy of the left great toe and hammer toe repairs of the second and third digits.  Post-operatively the CI experienced persistent pain and stiffness of the left great toe.  This was not resolved with PT, and he had arthroscopic surgery of the left great toe metatarsophalangeal (MTP) joint in November 2002 where some scar debridement was performed.  However, this did not improve his pain or ROM despite aggressive post-operative therapy.  He was referred to the MEB in February 2002 due to the significant functional limitations associated with his left foot pain.  The podiatry MEB narrative summary 27 February 2003 recorded a chief complaint of chronic pain in the left foot, especially after weight bearing activity: “Because of the significant functional limitations created because of the condition of his left foot, a permanent profile/MEB was initiated on 27 Feb 02.”  Examination of both feet was “unremarkable” except for surgical scars and tenderness of the first, second and third MTP joints of the left foot.  The left first MTP had no motion.  The podiatrist noted that at that time the CI reported he was unable to perform military duties such as running, road marching, or standing and walking for prolonged periods of time due to left foot pain.  There was no mention of functionally being limited by right foot pain.  A 19 March 2003 podiatry clinic appointment noted CI’s report of swelling and cramping of both feet, left greater than right.  At the MEB exam of 20 May 2003, approximately 4 months before separation, the CI reported ongoing bilateral foot pain.  He was noted to have a bunion and hammertoe of the 3rd digit on the right side, and stiffness/tenderness of the great toe on the left.  There were no neurologic deficits.  At the C&P examination of 29 July 2003, 2 months before separation, the CI reported the same foot symptoms.  The CI was noted to have fixation of MTP joints at the left 1st, 2nd, and 3rd toes, as well as the right 2nd toe.  The gait was normal and there were no neurologic abnormalities.  At another C&P examination of 15 July 2004, approximately 10 months after separation, the CI reported essentially unchanged symptoms.  On examination, the left first MTP evidenced the bunionectomy scar without mention of motion.  The left second and third toes evidenced functional MTP joints, with fused proximal interphalangeal joints from the hammer toe correction surgery.  On the right foot, there was a bunion of the great toe, surgical scar of the right second toe from hammer toe correction, and a hammer toe deformity of the right third toe.  Again, there was no indication of gait disturbance, although pain with ambulation was reported.  

The Board first discussed whether each foot pain condition when considered separately was unfitting for continued military service.  All members agreed the left foot pain condition was separately unfitting for continued military service and was the primary reason for MEB referral.  The Board noted that evidence supporting the right foot as unfitting was largely absent from the STR.  However the Board members agreed the MEB NARSUMs reasonably supported its inclusion as unfitting, particularly when combined with the left foot.  The Board directs attention to its rating recommendation based on the above evidence.  The PEB and DVA chose different coding options for the condition.  The PEB rated the bilateral foot pain condition 10% coded analogously to 5003, a generalized code for degenerative arthritis.  The VA rating decisions dated 7 October 2003 and 25 October 2004, within 12 months post separation, used code 5280 for the CI’s left foot condition (the specific code for hallux valgus, unilateral, operated with resection of metatarsal head) and code 5280-5282 for the CI’s right foot condition (hallux valgus and hammertoe, single digit).  The 10% rating for the CI’s left foot condition was the maximum that could be achieved under the appropriately chosen 5280 code.  The CI received a 0% rating for the right foot based upon the VASRD criteria for the single hammertoe; since he did not have bunion surgery on the right, nor a severe deformity, no rating could be applied under code 5280.  The Board considered that both the left and the right foot conditions could be rated together under analogous code 5279, metatarsalgia, to capture the CI’s bilateral foot condition with the same resulting rating of 10%.   The Board concluded rating the right foot separately would result in a 0% (zero percent) rating providing no additional rating benefit.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the CI’s bilateral foot condition, coded 5279.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on the USAPDA pain policy for rating the bilateral foot pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB 10% rating but makes this recommendation based on current VASRD guidelines with VASRD diagnostic code  5242 for degenerative arthritis of the spine.  In the matter of the bilateral foot pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5279 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration. 

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

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Back Pain	5242	10%	
Bilateral Foot Pain	5299-5279	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130327, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / xxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for xxxxxxxxxxxxxxxxxxxxxxxx, AR20130014628 (PD201300128)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl