RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01509
BRANCH OF SERVICE:  Army	BOARD DATE:  20150324
SEPARATION DATE:  20050620

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Infantryman) medically separated for chronic low back pain (LBP) and chronic bilateral foot pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic LBP and chronic bilateral foot pain conditions, characterized as “lumbar degenerative disc disease, L4-5 and L5-S1” and “plantar fasciitis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (left shoulder, right elbow and right knee).  The Informal PEB (IPEB) adjudicated chronic LBP and chronic bilateral foot pain as unfitting conditions, rated 0% and 0%.  The remaining conditions were determined to be not unfitting.  The US Army Physical Disability Agency completed an Administrative Correction which had no bearing on the IPEB findings and recommendations.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Injury was career ending for a 15yr infantry soldier.  This was not my only disability.  See the others listed, I was receiving care for PTSD, RT HIP; Back; Ankle; Elbow up to discharge at Ft. Knox. Disabilities at the time of separation were rated by VA the following couple of months.  Please review their original findings, and current findings and on-going findings.  Care for Back; PTSD, Elbow, Knee; HBP were being done up to discharge.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

USAPDA Admin Correction – Dated 20050602	VA - (3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	0%	Degenerative Disc Disease of Lumbar Spine	5237	10%	20050330	
Chronic Bilateral Foot Pain	5399-5310	0%	Plantar Fasciitis of the Right Foot	5299-5276	0%	20050330	
Non-Specific Pain, Right Elbow	Not Unfitting	Right Elbow Pain	NSC		20050330	
Non-Specific Pain, Right Knee	Not Unfitting	Right Retropatellar Pain Syndrome	5260-5024	10%	20050330	
Other x 1 (Not in Scope)	Other x 11		
Combined:  0%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20050722 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The PEB rated the bilateral foot pain as a single unfitting condition, coded analogously to 5399-5310.  The Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting.  Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting; and, that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting.  Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Chronic Low Back Pain Condition. The earliest notes in the service treatment record (STR) refer to pain of lower back, which came on gradually, after the CI was hurt moving desks in early February 1990 and was treated with anti-inflammatory medication, physical therapy (PT), and a temporary profile.  The STR indicated he returned for treatment of the LBP in November 1992, which the CI noted was a continuation of the pain that began in February 1990.  The assessment was facet joint syndrome without spasm and treatment was with nonsteroidal anti-inflammatory and muscle relaxant medications.  A lumbar spine X-ray series in February 2004 was normal and a magnetic resonance imaging (MRI) of the lumbar spine in March 2004 for chronic LBP and right leg pain revealed a somewhat broad-based disc bulging at L4/L5 and L5/S1 that did not appear to affect the nerve roots.  Flexeril (cyclobenzaprine-a muscle relaxant) was prescribed in March 2004 along with chiropractic and PT treatments; and the chiropractor recorded a full range-of-motion (ROM) on 15 March 2004.  Further history indicated the CI’s chronic back pain was secondary to heavy lifting prior to deployment and wearing gear while deployed, and the pain was treated with a series of trigger point injections, although it was not clear which part of the back.  On 25 March 2004, the CI was evaluated and treated by pain management for pain in the lower back that began approximately 14 months earlier and was described as “aching, throbbing, shooting, stabbing, sharp, tender, tiring, penetrating, knife-like, nagging, and miserable pain.”  He also had some shooting pain in his legs, but no loss of bowel or bladder control.  A non-steroidal anti-inflammatory medication (Bextra) was started.  Epidural steroid injections were given for the lower back pain on 9 April 2004 and on 27 April 2004.  The back pain flared when the CI sat in a dental chair in December 2004; treatment was with Percocet (a narcotic combination of oxycodone and acetaminophen [Tylenol]), which was replaced by Vicodin (a narcotic of hydrocodone and acetaminophen) later in the month.

At the MEB examination performed on 14 March 2005, the CI reported lower back pain with numbness of the left toe and right leg.  The MEB physical examiner noted LBP and degenerative disc disease (DDD) as defects and diagnoses, but the spine examination was marked as normal.  The commander’s statement dated 18 March 2005 indicated the CI was physically incapable of performing his duty because of, among other conditions, two bulging discs in his lower back caused him excruciating pain.  The MEB narrative summary (NARSUM) dated 28 March 2005 noted the CI developed LBP gradually 11 years earlier, which was exacerbated in January 2003 when he was carrying a litter.  His back pain, localized in the lower back, persisted and did not respond to activity modification, PT, or medications.  X-rays demonstrated disc bulges at L4-5 and L5-S1 with no effect on nerve roots.  Examination revealed the CI walked on heels and toes and was able to do toe rises.  Lumbosacral flexion was 42 degrees, lumbosacral extension was 12 degrees; thoracolumbar rotation was 80 degrees bilaterally; and thoracolumbar tilt was 60 degrees.  The spine was straight and non-tender.  Neurological examination was unremarkable.  The diagnosis was lumbar DDD, L4-5 and L5-S1, without significant neurologic loss, but with significant functional incapacity.  An L3 permanent profile was issued on 26 May 2004 and was reissued on 4 April 2005 for back pain with limitations of functional military activities and physical fitness testing.

At the VA Compensation and Pension (C&P) exam performed 3 months prior to separation, the CI’s history of lumbar spine pain was noted to be from an injury in 1988 when he fell during a simulated situation while carrying a patient on a stretcher and reinjured it during deployment.  An MRI confirmed disc bulging, but no herniation and an electromyography was within normal limits.  The CI used no braces and had no surgery, had a pain level of 8/10 (10 being the worst pain), and was unable to do his job.  His gait and posture were normal.  He had pain at 90 degrees flexion of the lumbar spine that could go about 95 degrees with “stated pain.”  There were no fixed deformities in the lumbar spine; and repetitive motion did increase discomfort and decrease function of the lumbar spine at 90 degrees.  Neurologic evaluation was unremarkable and there were no radicular symptoms.  The VARD dated 22 July 2005 indicated the CI injured his back during an airborne jump in 2002 and physical examination revealed not only pain at 90 degrees flexion, but “a full range of motion in extension, bending to the right and left sides, and on bilateral motion,” which was not listed in the VA C&P examination.  A temporally remote (91 months after separation) VA C&P examination was reviewed; however, it offered very limited or no probative post-separation evidence of any significant value.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	
PT ~11 Mo. Pre-Sep
	MEB ~ 3 Mo. Pre-Sep
	VA C&P ~ 3 Mo. Pre-Sep
	
Flexion (90 Normal)	50	Lumbosacral 42	90	
Extension (30)	10	Lumbosacral 12	FROM	
R Lat Flexion (30)	20	Thoracolumbar 60	FROM	
L Lat Flexion (30)	25	Thoracolumbar 60	FROM	
R Rotation (30)	25	Thoracolumbar 80	FROM	
L Rotation (30)	20	Thoracolumbar 80	FROM	
Combined (240)	150	-	-	
Comment	Pain on motion, especially with flexion.	Lumbosacral and thoracolumbar measurements were mixed. 	Repetitive motion increased discomfort and decreased function.	
§4.71a Rating	20%	-	VA 10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5299-5237 (Lumbosacral strain) for chronic LBP.  The VA assigned a 10% rating using code 5237 for DDD of the lumbar spine.  The Board noted the ROM measurements performed during the MEB NARSUM examination used mixed measurements of lumbosacral and thoracolumbar areas, which are not amenable to VASRD rating.  The VA examination, although limited, but supported by the VARD with the notations of full ROM of extension, lateral flexion bilaterally, and rotation bilaterally were not explicitly recorded in the VA examination finding; however, loss of function on repetition was mentioned.  The PT examination for the MEB recorded a ROM of 50 degrees for flexion and 150 degrees combined, offering a possible route to a 20% rating.  However, the Board felt the VA examination has a higher probative value because of its proximity to separation and is consistent with an expectation of improvement in the presence of treatment and also mentioned the DeLuca criteria.  The Board must establish a functional impairment linked to fitness in order to recommend separate rating for a radiculopathy associated with unfitting spine conditions; a threshold clearly not reached by the evidence in this case.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.”  Therefore, the Board finds that a 10% rating is within reason, but nevertheless considered the findings of the PT examination a year earlier.  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 chronic low back condition.

Chronic Bilateral Foot Pain Condition.  The CI presented with right foot pain on 1 February 2005 that was diagnosed as plantar fasciitis.  In March 2004, he had pain at the arch of the right foot, which was sharp and was painful with walking, which the CI related to certain shoes.  A bone scan dated 5 May 2004 indicated no evidence of a stress fracture and minimal right plantar fasciitis.  At a follow-up visit on 24 May 2004, the CI noted “[t]he boots kill me,” enough such that running and walking were limited in spite of PT and the use of orthotics.  In a Memorandum to the PEB dated 24 May 2005 indicated the CI’s probable disqualifying diagnosis was chronic minimal right plantar fasciitis.  A bone scan dated 2 February 2005 revealed moderate stress changes of the ankles bilaterally and mid feet without evidence of a stress fracture.

The NARSUM dated 14 March 2005 noted the CI’s chief complaint as a painful right heel, which began when deployed in 2003, and was described as 5/10 painful.  Initial treatment was with over-the-counter orthotics.  Eventually he received computerized orthotics, which decreased his pain form 8/10 to 5/10.  Examination revealed no edema, erythema (redness) or cellulitis (soft tissue infection) of the feet.  Neurological examination was unremarkable.  The ROM for dorsiflexion was 30 degrees bilaterally and plantar flexion was 45 degrees bilaterally.  On the MEB examination the CI reported plantar fasciitis.  The MEB physical examination dated 14 March 2005 noted only a normal arch of the feet.  The commander’s statement dated 18 March 2005 addressed plantar fasciitis and indicated “the tendon that helps him spring back from each step or any pressure put on the sole of his foot has deteriorated.”  That condition along with others made him physically incapable of performing his duties.  A permanent L3 profile dated 4 April 2004 for right foot pain along with other conditions, had limitations of military functional activities and no physical fitness training or testing.

At the VA C&P examination dated 30 March 2005, performed 3 months prior to separation, the CI reported he thought his foot became achy when he was doing road marches.  As a result he missed work and was taken off a work status.  There was full active ROM of motion in both feet without pain and discomfort along the plantar surface of the right foot.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5399-5310 (Group X Function of the foot muscles and the plantar aponeurosis (the plantar fascia), and ligaments and tendons of the foot) for chronic bilateral foot pain rated as slight.  The VA assigned a 0% rating using code 5299-5276 (acquired flatfoot) for plantar fasciitis of the right foot.  The Board first considered whether the right foot plantar fasciitis pain was reasonably justified as separately unfitting.  Members agreed that the evidence supports that the functional limitations of the right foot plantar fasciitis foot pain could be reasonably justified as separately unfitting and a separate rating is recommended, especially since the CI was an infantryman.  Use of code 5284 (Foot Injuries, other) affords an opportunity for a 10% rating, although code 5299-5276 is closer to the anatomical basis of the unfitting condition; and there was no route to a higher rating.  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 right foot pain (plantar fasciitis) condition.

The Board then considered whether left foot pain was reasonably justified as separately unfitting.  The left foot pain was not implicated in the commander’s statement or listed on the profile.  The STR did not document functional limitations of the left foot pain that interfered with the CI’s performance of duties at the time of separation.  The Board did take note of the MRI findings of that showed moderate stress changes of the mid feet bilaterally.  However, after due deliberation, members agreed the evidence does not support the left foot pain to be reasonably justified as separately unfitting resulting in the CI’s inability to perform his MOS; and, the Board cannot recommend a separate rating.

Contended PEB Conditions:

Non-Specific Pain of the Right Elbow and Right Knee.  The Board’s main charge is to assess the fairness of the PEB’s determination that non-specific pain of the right elbow and right knee were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The non-specific pain of the right elbow and right knee were profiled, as U3 and L3 respectively and precluded deployment along with other conditions.  Neither condition was implicated in the commander’s statement.  X-rays of all of the joints were normal.

Non-Specific Right Elbow Pain.  The CI sustained an injury to the right elbow during a combat assault training evolution in September 2000.  At a visit 2 days later, he had full ROM of the elbow with tingling from the elbow to the 4th and 5th fingers.  The NARSUM examination noted full a ROM with no abnormal physical findings.  The elbow pain did not respond to conservative therapy.  At the VA examination, the CI indicated he injured his right elbow in 1989, and was put on some anti-inflammatory medication and was told it was tendonitis.  He injured the elbow again in 1998.  Pain came and went with pressure on the elbow; and it felt like he had a spur or some loose bodies in the elbow.  It had no effect on activity or work.  On examination he had tenderness over the lateral epicondyle (pyramid shaped bony prominence) of the right elbow.  There was some slight crepitus palpated on the ROM and pain at 40 degrees flexion.

Non-Specific Right Knee Pain. The CI first twisted his right knee In October 1989.  On 29 December 2003 the CI reported a twisting injury of the right knee while he was on emergency leave.  Pain was present at the right lateral joint line.  An MRI dated 31 December 2003 revealed an insignificant sclerotic (thickened) bone island of the distal femur and a minor sprain of the posterior cruciate ligament.  Examination a week later noted a full ROM, tenderness of the lateral (outer) joint line, and a right lateral McMurray’s test (to determine a meniscal tear).  On 14 January 2004, hypermobility of the patella (knee cap) was noted.  Surgery was determined not to be needed and physical therapy was to be instituted.  Within 2 weeks improvement was noted.  Examination on 12 February 2004 revealed crepitance and lateral instability with a full ROM.  By 30 April 2004 pain shifted to the medial (inner) knee raising the possibility of a medial plica (inflammation of the synovial (joint covering membrane) capsule tissue).  By 12 May 2004 examination was normal with a full ROM to 140 degrees except for mild tenderness over the medial plica region and conservative treatment was continued.  Knee pain without swelling or redness was noted in November 2004.  The NARSUM examiner opined that the CI’s symptoms were suggestive of chondromalacia patella (inflammation of the cartilage of the knee cap).  At a VA examination on 30 March 2005, it was noted the CI’s knee no longer swelled; he had a knee brace that he wore 3 hours a day; and he was unable to run.  He had full ROM of the knee with crepitus of the right knee.  Repetitive motion did increase discomfort and decreased function.  There was no laxity or instability, but edema was noted.

The evidence was reviewed and considered by the Board.  There was no performance based evidence from the record that the right elbow pain significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended right elbow pain, so no additional disability rating is recommended.  However, after due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of right knee condition favors a recommendation as an additionally unfitting condition for.  It is appropriately coded 5009-5003 and meets the VASRD §4.71a criteria for a 10% 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 low back pain, the Board unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the right foot pain (plantar fasciitis) condition, the Board majority recommends a disability rating of 10%, coded 5299-5276 IAW VASRD §4.71a.  In the matter of the contended right knee condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 5009-5003 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain	5299-5237	10%	
Right Foot Pain (Plantar Fasciitis)	5299-5276  	10%	
Right Knee Pain	5009-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130915, 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, AR20150011033 (PD201301509)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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 the memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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		
						
CF: 
(  ) DoD PDBR
(  ) DVA