RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-00868
BRANCH OF SERVICE:  Army	BOARD DATE:  20141007
SEPARATION DATE:  20061020

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (31B/Military Police) medically separated for bilateral pes planus and chronic bilateral foot pain.  The bilateral foot conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  Her profile allowed for an alternate aerobic event to satisfy physical fitness standards.  She was issued a permanent L3/S1 profile and referred for a Medical Evaluation Board (MEB).  The bilateral foot conditions, characterized by the MEB as “hallux valgus” and “bilateral pes planus,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “bilateral pes planus” as a condition existing prior to service (EPTS), but subsequently aggravated by service, rendering the CI unfit, rated 20%, referencing application of Department of Defense Instruction (DoDI) 1332.38 paragraph E2.1.3.2.  The PEB adjudicated the “chronic bilateral foot pain” as an EPTS condition, but not permanently aggravated by service, therefore not ratable, referencing application of DoDI 1332.38 paragraph E3.P4.5.6.  The MEB also forwarded the diagnosis of adjustment disorder with anxiety as medically acceptable.  The psychiatric memorandum to the PEB noted that a formal psychiatric addendum was not required because the CI continued to meet retention standards with regards to her psychiatric diagnosis.  The PEB did not adjudicate the adjustment disorder with anxiety.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have incurred other injuries caused by the conditions I was initially separated with and overtime my symtoms has gotten worse.  My condition has gradually worsened; causing injury to other areas of the body.” [sic]

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 rating for the unfitting bilateral pes planus and chronic bilateral foot pain conditions are addressed below.  In addition, the CI was notified by the Service that her case qualifies for review of her mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012, and whose MH diagnoses were unfavorably changed or eliminated during that process.  In response to said notification, it is presumed that the CI has elected review by this Board for the MH condition.  Accordingly, the case file was reviewed regarding unfavorable diagnosis change, fitness determination, applicability of VA Schedule for Rating Disabilities (VASRD) §4.129, and rating (via §4.129 or §4.130 as appropriate) of the MH condition adjudicated as not unfitting.  The rating for the unfitting bilateral pes planus and chronic foot pain along with the above considerations for the MH condition are addressed below.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20060810	VA - (2 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Pes Planus	5299-5276	20%	Hallux Valgus, L Foot s/p Osteotomy	5280	10%	20060825	
			S/P Subtalar Arthroereisis	5271	0%	20060825	
Chronic Bilateral Foot Pain s/p Hallux Valgus	5299-5280	EPTS/NO PSA	Hallux Valgus, R Foot s/p Osteotomy	5280	10%	20060825	
			S/P Subtalar Arthroereisis	5271	0%	20060825	
Adjustment Disorder with Anxiety	Medically Acceptable	No VA Entry*	
Other x 0 (Not in Scope)	Other x 1	20060823	
Rating:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20061101 (most proximate to date of separation [DOS]).
*PTSD was originally NSC on 20070522 VARD, then on 20120719, PTSD was rated 50% with effective date of 20061021.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; 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 Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Bilateral Pes Planus/Chronic Bilateral Foot Pain.  Available treatment records documented that the CI first presented with right lower extremity pain in February 2002.  At that time she reported a 2-month history of bilateral ankle pain.  Physical evaluation was significant for tenderness to palpation at the outer sides of the ankle (lateral malleolus) bilaterally.  Examiner diagnosed left ankle strain and flat feet.  Treatment included anti-inflammatory medication, lace up ankle brace and activity modification.  Treatment records were silent for foot or ankle pain until December 2004, when CI presented to primary care with reports of chronic bilateral foot pain secondary to flat feet and bunions.  On 25 March 2005, CI underwent podiatric surgery for hypermobile left flat foot (subtalar arthroereisis with MBA implant), severe left bunion deformity (bunionectomy) and hammertoe, 5th toe (arthroplasty).  In August 2005, CI underwent podiatric surgery on the right foot for hypermobile flat foot and bunion deformity.  The CI continued to report left foot pain and underwent left foot surgery 20 January 2006   to correct an acquired deformity of the left great toe.  Despite conservative and surgical intervention, the CI continued to report bilateral foot pain and was referred for a MEB.  At the MEB examination, dated 1 June 2006, the examiner noted pes planus (flat feet), a right bunion, and surgical scars.  The CI was unable to perform toe walk due to pain, but ankle range-of-motion and gait were normal.  There was pain at the right ankle with flexing of the foot towards the body (dorsiflexion).

The narrative summary (NARSUM) dated 27 July 2006, documented persistent bilateral foot pain.  The foot and ankle examinations documented surgical scars and less than 55 degrees of dorsiflexion of the left great toe with grinding sensation and sound with motion (crepitus).  The examiner noted diagnoses of chronic bilateral foot and ankle pain; bilateral bunions (hallux valgus) with correctional surgery; and bilateral pes planus, again, with corrective surgery.  There was a note stating that the moderate, frequent, bilateral foot pain did not EPTS.

At the VA Compensation and Pension examination performed 2 months prior to separation, the CI reported that she was unable to run, stand greater than 10 minutes, or walk greater the 1.2 miles due to bilateral foot pain.  The physical examination was significant for foot tenderness to palpation bilaterally with moderate to severe pes planus.  Ankle range-of-motion and gait were normal.

The Board directs attention to its rating recommendation based on the above evidence for the bilateral pes planus.  The PEB adjudicated the “bilateral pes planus” condition as unfitting.  The PEB determined that the condition EPTS, was permanently aggravated by Service and assigned a disability rating of 20%, coded 5299-5276, analogous to acquired pes planus.  The VA subsumed the bilateral pes planus foot pain into the rating for the hallux valgus (bunion) condition and assigned a disability rating of 10% for each foot.  The VA rated the right subtalar arthroereisis for treatment of pes planus at 0%.  The Board noted that asymptomatic, moderate pes planus was documented on the military entrance physical.  Treatment notes documented that bilateral foot pain persisted despite conservative and surgical.  The Board deliberated whether criteria were met for a higher than 20% rating for the bilateral pes planus condition.  Multiple treatment and VA records documented chronic symptomatic pes planus after surgical intervention; however, gait was normal and there was no evidence of swelling or callosities (callus).  The Board determined that the records evidenced moderate pes planus and did not meet criteria for a higher than 20% rating.  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 “bilateral pes planus” condition.	

The Board directs attention to its rating recommendation based on the above evidence for the chronic bilateral foot pain.  The PEB adjudicated the chronic bilateral foot pain, status post, surgical treatment of hallux valgus as unfitting.  The PEB noted that there was “compelling evidence” that the condition EPTS, was not permanently aggravated beyond its natural progression, and therefore, was not ratable.  The PEB also cited application of DODI 1332.38 paragraph E3.P4.5.6 for residual pain after surgical intervention.  “Generally recognized risks associated with treating pre-existing conditions shall not be considered service aggravation.”  The VA rated the hallux valgus deformity at 10% for each foot, a combined rating of 20%.  The Board noted that the military entrance examination dated 27 January 2001 did not document observation of hallux valgus deformities.  A primary care note dated 18 September 2002 was the first evidence of a diagnosis of bilateral bunions (hallux valgus).  The Board considered the insidious nature of hallux valgus deformities and the CI’s time in service prior to initial documentation of the diagnosis.  The Board also noted that treatment was performed for correction of the deformity.  The Board considered whether chronic bilateral foot pain, status post, surgical treatment of hallux valgus, in the absence of the EPTS, met criteria for compensation IAW VASRD.  A 10% rating for each foot is the maximum evaluation permitted for hallux valgus; for a combined 20% rating including bilateral factor.  Hallux valgus deformities, residuals of surgical treatment and bilateral pes planus produce a common disability picture characterized by foot pain.  IAW VASRD §4.14, avoidance of pyramiding, evaluation of the same manifestation under different diagnoses is to be avoided.  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 bilateral hallux valgus condition.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

Mental Health Review.  Available treatment records documented a MH assessment dated 20 June 2006.  At that time the CI reported waxing and waning anxiety, stress, and sleeping problems for a little over a year.  There were no other MH treatment notes for review.  A memorandum from psychiatry dated 26 June 2006 noted a prior diagnosis of adjustment disorder with anxiety and that the severity of symptoms did not interfere with her ability to perform her duties.  The MEB forwarded the diagnosis of adjustment disorder with anxiety as meeting retention standards.  The PEB did not adjudicate the adjustment disorder with anxiety condition.  Approximately 6 years after separation VA rendered a diagnosis of PTSD with a disability rating of 50%.

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the DES.  Available records evidenced that a diagnosis of adjustment disorder with anxiety was rendered during the DES process.  The MEB forwarded adjustment disorder with anxiety as meeting retention standards.  The PEB did not adjudicate the adjustment disorder with anxiety condition.  IAW DODI 1332.38 paragraph E5.1.3.9.4, adjustment disorder with anxiety does not constitute a physical disability and is not ratable; therefore the Board concluded that a MH diagnosis was not changed to the applicant’s possible disadvantage during the DES process.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The SRP agreed that the record evidenced minimal MH related symptoms.  The applicant was never hospitalized psychiatrically, never reported suicidal or homicidal thoughts, never seen in the emergency room for MH concerns and there was history of domestic violence.  There was no clinical evidence that her condition caused significant impairment in social or occupational functioning.  The commander’s statement indicated that her physical condition prevented her from performing the duties of her MOS.  A MH condition was never profiled.  The Board concluded that there was insufficient evidence that any mental health condition rose to the level of being unfitting at the time of separation and therefore, none were subject to disability rating.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the bilateral pes planus condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic bilateral foot pain, status post surgical treatment of hallux valgus condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the MH review, the Board unanimously agrees no MH diagnoses were changed to the CI’s possible disadvantage.  The Board unanimously agrees that adjustment disorder with anxiety did not rise to the level of unfitting and could not be recommended for a disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130509, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150004315 (PD201300868)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA