RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01515
BRANCH OF SERVICE:  Army	BOARD DATE:  20150128
SEPARATION DATE:  20040318

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Wheeled Vehicle Mechanic) medically separated for chronic low back pain (LBP) and bilateral hallux limitus, status post bilateral bunionectomy.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic LBP and bilateral hallux limitus, status post bilateral bunionectomy conditions, characterized as “chronic back pain,” and “Hallux limitus (big toe limited motion and pain) bilateral,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition.  The Informal PEB adjudicated “chronic low back pain” and “bilateral hallux limitus, status post bilateral bunionectomy” as unfitting, rated 10% and existed prior to service (EPTS), with likely application of Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Medical condition has continued to change, to incuded multiple surgaries and hardware placed in left foot. I also my left hip is getting worse, I have pain often for my chronic cervicitis I have also been treated a number of time for issues regarding this.” [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 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 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:

Service IPEB – Dated 20040120	VA - (1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Lumbosacral Strain	5237	10%	20040218	
Bilateral Hallux Limitus, status post Bilateral Bunionectomy	5299-5281	EPTS	Residuals of Bunionectomies, Right Foot	5280-7804	10%	20040218	
			Residuals of Bunionectomies, Left Foot		5280-7804	10%	20040218	
Osteoarthritis Bilateral Hips	Not Unfitting	Osteoarthritis, Right Hip	5299-5252	10%	20040218	
Other x 0 (Not in Scope)	Other x 2		
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20040406 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  The service treatment record (STR) had limited primary source material relating to the CI’s LBP; however, a note dated 10 February 2003 from the Physical Medicine Clinic indicated the pain began about 6 months after her foot problems started, which was within 2 weeks of commencing active duty.  There was no trauma or injury to the back.  The pain occurred 15 out of 30 days per month and was described as an aching across the small of the back, which lasted for hours to days.  No leg weakness or neurological symptoms were reported and the lumbar ranges-of-motion (ROMs) were normal.  A physical therapy evaluation on 14 January 2004 noted the CI had pain of 5/10 without bowel or bladder problems and she was able to do functional activities including bending down to don or doff her boots.  At the MEB examination dated 15 October 2003, the CI reported “back pain from the way I walk” and “sitting for a long time bothers my back. . .”  The MEB physical examination report was checked normal for the spine.  The MEB narrative summary (NARSUM) dated 27 October 2003 indicated the CI had a history of chronic low back and bilateral hip pain (discussed below) since 2001 with progressive worsening pain over time and limited mobility.  She failed conservative physical and aquatic therapy treatments, medications, activity modification, and temporary profiles.  Symptoms were aggravated with lifting, bending at the waist, high impact activities, and wearing or carrying military equipment.  X-rays of the lumbar spine in December 2002 were normal.  The examiner noted no atrophy, positive tenderness to palpation with taut muscle band/trigger points over the sacral sulci (medial to the sacroiliac joint) and lumbar paraspinal muscles.  Tests for nerve irritation and sacroiliac dysfunction were negative and neurological evaluation was unremarkable.  The examiner opined the diagnosis as chronic LBP--mechanical/myofascial (muscle and its surrounding fascia [connective tissue] wrapping) (frequent and slight).  An L3 profile for chronic LBP was issued on 17 November 2003 with restrictions of no running, jumping, prolonged standing and climbing or crawling below or on military vehicles.

At the VA Compensation and Pension (C&P) examination dated 18 February 2004, performed a month prior to separation, the CI reported daily, constant symptoms of chronic stiffness and weakness with pain intensity of 4/10 precipitated by physical activity and inclement weather, but no radiculopathy.  There was tenderness to palpation over the lumbar vertebrae and paraspinal muscles.  Neurological examination was unremarkable.  There was no muscle atrophy or abnormality of posture or gait; and, the diagnosis of myofascial syndrome of the back was made.  

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)	MEB NARSUM~6 Mo. Pre-Sep
	PT ~02 Mo. Pre-Sep
	VA C&P ~ 01 Mo. Pre-Sep
	
Flexion (90 Normal)	90	90*	90	
Extension (30)	30	30*	30	
R Lat Flexion (30)	30	-	30	
L Lat Flexion (30)	30	-	30	
R Rotation (30)	30*	-	30	
L Rotation (30)	30*	-	30	
Combined (240)	240	-	240	
Comment	TTTP lumbar paraspinal muscles;
*actual measurements exceed VASRD guidelines	*actual measurements exceed VASRD guidelines
	Fatigability with repetitive use; pain increased throughout the ROM; painful motion 70⁰-90⁰	
§4.71a Rating	10%	0%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB applied a 10% rating using analogous code 5299-5237 (lumbosacral strain) for chronic LBP with localized tenderness.  The VA likewise assigned a 10% rating using code 5237 based on fatigue on repetitive use and painful motion.  In the presence of normal ROMs and absence of incapacitating episodes, the Board was unable to find a route to a higher 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 chronic low back condition.

Bilateral Hallux Limitus, Status Post Bilateral Bunionectomy Condition.  The CI noted a 1-week history of pain in the feet on 3 March 2000 while undergoing an initial active duty for training period of service (Army Reserve basic training).  She was diagnosed with pes cavus (flat feet) with plantar fasciitis (pain in the sole of the foot) and treated with a profile, a nonsteroidal anti-inflammatory medication and arch supports.  On 6 May 2000, she presented again with pain in the feet with or without boots and it was described as sharp and continuous.  She had a history of bunions (bumps on the inside of the big toes) with findings of bilateral mild hallux valgus (inward deformity of the big toe), tenderness and erythema (redness).  Treatment consisted of bunion pads, nonsteroidal anti-inflammatory medication, and the use of tennis shoes.  After completing basic training, when she was in a civilian status, the CI underwent a right bunion repair on 8 September 2000 and a left bunion repair on 11 January 2001.  An after surgery note dated 25 April 2001 indicated pain in the area of the medial (inner) big toe joints with prolonged standing, but she was otherwise “getting along very well” and was discharged from care.  On 12 September 2001, which was within 2 weeks after commencement of active duty, she presented with bilateral foot pain “where the pins are.”  The impression was irritation from the microfixation (small) screws placed during the aforementioned surgical procedures and a profile was generated.  The examiner noted “No” foot trouble marked on her Reserve enlistment H&P of “14 Jan 00” and “No” to bones surgically repaired using pins screws or plates.  He asked a rhetorical question after noting the operative reports by an orthopedic surgeon were in the chart:  “but ? if patient cleared by ortho for active US [Army],” but nevertheless generated a profile and made a follow-up visit.  Physical therapy (PT) began on 21 December 2001 and follow-up on 15 January 2002 noted the CI was able to pass the physical fitness test and pain decreased within an hour after the test.  But, because pain persisted, she underwent hardware removal along with a right bunionectomy and correction on 17 May 2002 and resumed PT thereafter.  However, pain in the feet continued, and she developed bilateral knee and right hip pain (discussed below).  Hardware was removed from the left big toe (first metatarsal) on 2 October 2002.  Postoperatively foot pain persisted.  ROMs for the big toe joint were decreased to less than 55 degrees dorsiflexion (DF) (Normal 70 degrees) and less than 5 degrees plantar flexion (PF) (Normal 45 degrees) in December 2002 and were DF 20 degrees and PF 25 degrees on the left and DF 45 degrees and PF 25 degrees on the right 6 months later.  At the MEB examination dated 15 October 2003, the CI reported that she “can’t not stand for a long time from my feet,” had “restricted movement in my feet,” had “5” “. . . foot surgaries (sic) from the age of 21-23,” and had “bunion surgary (sic) on my left and right foot.” 

The MEB physical examination noted surgical scars of both great toes and pain and decreased ROM of both large toes.  An L3 profile was issued for bilateral hallux limitus (big toes limited motion and pain) on 13 November 2003 with restrictions of no running, jumping, prolonged standing, climbing or crawling on or under military equipment.  The MEB NARSUM dated 12 December 2003 indicated the CI underwent additional surgery to remove the hardware and correction of her right foot from the surgery performed in September 2000.  Post-operatively, the CI returned to walking activities.  The big toe joints ROMs were 60 degrees DF and less than 10 degrees PF bilaterally.  Although the CI had a greater ROM, she stated that she was able to stand greater than 30 minutes or walk more than two miles without significant pain, but she was unable to do all of her required tasks including carrying a load and wearing a flak jacket.  The CI’s condition of bilateral hallux limitus was determined to be “slight in intensity and occurred frequently.”  The commander’s statement dated 14 January 2004 noted “due to medical profiles and surgeries has been limited in some areas of her MOS.  We have utilized her talents in other areas to facilitate the restrictions placed on her by her current permanent profile.”  “She has been authorized to wear Hi Tech boots, but it doesn’t relieve the pressure of being on her feet all day” and “her physical limitations prevent her from participating in some of the most basic soldier functions.”

At the VA C&P examination on 18 February 2004, performed a month prior to separation, the examiner reported the CI was “diagnosed with bilateral bunions prior to active duty but during her reserve commitment.”  “Surgical intervention to correct the condition[s] was performed” in “the civilian community.  Subsequent to the surgical intervention, she developed hallux limitus” and underwent surgical procedures “for both hardware removal and correction of the hallux limitus.”  The examination of the feet revealed surgical scars and mild tenderness to palpation overlying both large toe joints and throughout the plantar (bottom) surface of the foot involving the plantar fascia connection to the calcaneus (heel bone). ROMs of the large toe joints were DF 0 degrees-50 degrees and PF 0 degrees-30 degrees, which were painful bilaterally.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB using code 5299-5281 assigned no rating for the bilateral hallux limitus, status post bilateral bunionectomy and indicated “[t]here is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated by such service.  Soldier had bunionectomies prior to duty, persistent foot pain with military footwear and impact activities.”  The VA, however, applied code 5280-7804 (Hallux valgus, unilateral/Scars) separately for the right foot and left foot at 10% each for the residuals of the bunionectomies.  However, the CI had presumptive bunion development and/or exacerbation during an initial active duty for training period of service with subsequent bilateral bunionectomies as a civilian prior to commencement of her active duty service pertinent to this adjudication.  While the PEB finding of EPTS did not account for her prior active service, the board extensively reviewed the record and discussed whether the bunionectomies performed during her interval as a civilian between the two active duty periods represented the condition as EPTS and whether there was service aggravation.  That the CI remained on duty after an examiner became aware of her condition, underwent physical therapy, passed the physical fitness test, was noted by the commander to be limited in some areas of her MOS but her talents in other areas facilitated profile restrictions, and the diagnosis transition from bilateral hallux valgus after three additional in-service surgical procedures to bilateral hallux limitus, a worse condition, speak in favor of service aggravation beyond the natural progression of the condition.  However, it was noted that the subsequent surgeries on the toes would not have been the sole cause of service aggravation in spite of the fact the procedures were performed during a period of active duty, but for the fact that a procedure was performed on each foot at a different time thereby having given the service sufficient opportunity to medically separate the CI sooner rather than later.  The most appropriate code to address the CI’s condition for each foot is 5281, which uses code 5280 for rating at 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the majority of Board members recommends a disability rating of 10% for each toe condition with  a combined rating of 20%.  The Board was unable to find a route to a higher rating.

Osteoarthritis Bilateral Hips.  An entry dated 29 January 2003 noted bilateral hip pain off and on for 6 months marked by shooting pain into the thighs.  The CI’s gait was normal and there was trigger point tenderness in the inner, upper thigh area.  Films of the hips were “normal,” and a temporary L3 profile was issued.  A bone scan of the hips and pelvis was negative.  A note dated 14 July 2003 indicated tenderness of the ilium (a bony component of the pelvis making up a portion of the hip) bilaterally with a full ROM of the hips bilaterally without difficulty.  A nonsteroidal anti-inflammatory medication and Tylenol were prescribed along with avoidance of prolonged sitting or standing and no flutter kicks, sit ups, or abdominal crunches.  A radiologic examination report of the hips dated 14 July 2003 gave the history as chronic pain of the left greater than right for 6 months and indicated “minimal degenerative changes with superior migration of the femoral head bilaterally.  No other findings.”  A temporary L3 physical profile dated 14 July 2003 for the bilateral hip and “feet” pain (discussed above) conditions was issued.  At the MEB examination dated 7 October 2003, she noted having “arthritis in my hips.”  A MEB addendum dated 27 October 2003 that addressed both low back and hip pain noted the CI had pain in both hips since 2001 with progressive worsening over time and with failure of PT and medications to  ameliorate it.  A Patrick’s test (to evaluate the hip joints or sacroiliac joints) was negative and the passive ROM of all four extremities was negative and muscle strength was normal throughout.  Her persistent hip pain was aggravated by the same activities as her back and limited her from performing her MOS and Army physical fitness test.  While the L3 permanent physical profile dated 13 November 2003 did not explicitly include pain in the hips, the limitations included many activities that would involve bilateral hip involvement.  The MEB NARSUM dated 12 December 2003 was directed to the CI’s foot pain (discussed above), noted her referral to Physical Medicine, and included bilateral hip osteoarthritis as one of the final diagnoses.  The commander’s statement acknowledged her developing back and hip problems and noted “physical therapy treatment has been ineffective.”  At the VA C&P examination dated 18 February 2004 the examiner noted the CI’s bilateral hip pain “formed gradually and progressively, responding poorly to conservative care.”  Examination revealed no deformity.  There was tenderness to palpation bilaterally over the inguinal canals. The ROMs bilaterally were:  Flexion 0 degrees-120 degrees (Normal 120 degrees), abduction 0 degrees-45 degrees (Normal 45 degrees), adduction 0 degrees-30 degrees (Normal 25 degrees), internal rotation 0 degrees-40 degrees (Normal 40 degrees), and external rotation 0 degrees-45 degrees (Normal 40 degrees) with painful motion noted bilaterally during flexion from 100 degrees-120 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the osteoarthritis of the bilateral hips not unfitting, while the VA assigned a 10% rating using code 5299-5252 for only osteoarthritis of the right hip according to the VARD, but in the explanation of service-connection for bilateral osteoarthritis it noted “Although there is no limitation of motion involving either hip, a 10 percent evaluation is assigned for each hip since flexion is painful from 100 to 120 degrees.”  The Board’s main charge with respect to this condition is an assessment of the fairness of the PEB’s determination that it was 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 established Disability Evaluation System principle for fitness determinations is that they are performance-based; and, the Board is confronted in this case with X-ray evidence of mild degenerative changes of the hips, although interpreted as normal by the examiner and supported by a negative bone scan, limited the performance of some of those duties required of the MOS.  Although it is acknowledged that the late evolution of the condition in the CI’s career did not provide for a significant trial of performance after the diagnosis, members agreed that there was no unique evidence referable to the hips, which would challenge the PEB’s fitness conclusion; and, there were no clinical features or specific functional limitations which would render the condition inherently unfitting.  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 osteoarthritis of the hips condition; thus no additional disability rating can be recommended.

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 DoDI 1332.39 for rating bilateral hallux limitus, status post bunionectomies was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the bilateral bunions status post bunionectomies condition, the Board by majority vote recommends a disability rating of 10% for each foot for a combined rating of 20%, coded 5281 IAW VASRD §4.71a and VASRD §4.26.  The single voter for dissent submitted an appended minority opinion.  In the matter of the osteoarthritis of the hips condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5299-5237	10	
Bilateral Hallux Limitus-Right Foot	5281	10	
Bilateral Hallux Limitus-Left Foot	5281	10	
COMBINED (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130919, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

Minority Opinion:  

Although it was not documented on the initial enlistment physical examination, the minority voter concludes the hallux valgus condition existed prior to entry into the first period of active duty.  The first STR entry noting the presence of hallux valgus (bunion) was 6 May 2000, approximately 10 weeks after initial entry on active duty (for training).  Bilateral foot pain was reported to have been present for 4 weeks (within 6 weeks of entry on active duty for training) without any specific injury.  The podiatrist noted that there was a history of bunions presumed to have been provided by the CI since there were no STR entries for care of the condition prior to this time.  The podiatrist provided pads, activity limitation for 7 days, and prescribed use of soft athletic shoes.  According to accepted medical principles, hallux valgus with bunions is a chronic condition which typically takes years to develop and is well known to occur in adolescent females.  It does not develop over a period of 10 weeks.  Furthermore, there was no acute injury to have caused the deformity within so short of time of entry on to active duty.  The CI completed training by July and separated from active duty without further documented care for foot pain indicating there were no injuries or aggravation of the condition while on active duty.  Following separation from active duty and while in civilian status the CI underwent surgery on both feet to correct the hallux valgus condition (right foot September 2000 and left foot January 2001).  The CI enlisted in the regular Army and entered active duty on 22 August 2001.  After approximately 2 weeks on active duty, the CI presented to the clinic complaining of bilateral foot pain due to her hallux valgus and bunions on 12 September 2001 and was placed on an activity limiting physical profile preventing participation in vigorous repetitive activities particularly running.  The physical fitness test in January 2002 was performed by walking, not running.  CI underwent additional surgeries on both feet while on active duty (the first in May 2002) without complication and with expected outcomes.  However, the CI was not able to run or perform strenuous military duties such as walking more than 2 miles, or carry a heavy military pack.  Review of STRs showed there was no specific injury to either foot while on active duty.  Further, treatment records reflect that the CI was maintained on an activity limiting profiles continuously from 12 September 2001 to the time of separation preventing participation in vigorous repetitive activities (run, jump, prolonged standing) over a long period of time which could have aggravated the condition.  According to DoD policy, generally recognized risks associated with treating preexisting conditions are not considered service aggravation.  Despite the surgeries and time spent performing routine military duties, there is no evidence the condition was worsened from the time of entry on active duty when she was unable to run or perform strenuous military duties and separation.  The MEB NARSUM noted that following recovery from surgeries there was greater ROM (of the toe) and ability to tolerate more walking).  Prior to separation, examinations showed good surgical outcome and examinations recorded a normal gait.  Therefore the minority voter concluded the evidence was clear and unmistakable that the condition was not incurred or permanently aggravated by service and presumptions of sound condition and service aggravation were overcome.

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5299-5237	10	
Bilateral Hallux Limitus-Right Foot	5281	EPTS	
Bilateral Hallux Limitus-Left Foot	5281	EPTS	
COMBINED (w/ BLF)	10%	

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 XXXXXXXXXXXXXXXXXX, AR20150008346 (PD201301515)

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 this 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