RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01542
BRANCH OF SERVICE:  Army	BOARD DATE:  20141119
SEPARATION DATE:  20050127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SSG/E-6 (21H3O/Construction Engineering Supervisor) medically separated for his back, hip, knee and feet conditions.  The conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The four conditions, characterized as “bilateral plantar fasciitis and pes planus”; “bilateral anterior knee pain”; “low back pain” and “degenerative joint disease of bilateral hips and SI joints” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition.  The Informal PEB (IPEB) adjudicated “low back pain”; “bilateral hip pain”; “bilateral knee pain” and “plantar fasciitis and pes planus” as unfitting, rated 10%, 10%, 0% and 0% respectfully with presumed application of the Department of Defense Instruction (DoDI) 1332.39.  The PEB also adjudicated the plantar fasciitis and pes planus conditions that existed prior to service (EPTS).  The remaining condition was determined to be not unfitting.  The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB findings and ratings.  The CI non-concurred with the FPEBs findings, but did not seek further judicial actions and was medically separated.

CI CONTENTION:  “VA rated me at 60% and the Board did not even consider other problem I am having (continued) DJD bilateral ankles, patellofemoral syndrome bilateral, DJD both hips, DJD 3 disk disposition.”

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 low back; hip; knee; plantar fasciitis and pes planus conditions are addressed below.  The bilateral ankle conditions (Achilles tendonitis), as per the CI’s contention, was identified by the MEB and are within the DoDI 6040.44 defined purview of the Board.  Any other conditions or contentions not requested in this application remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s contention that suggests service ratings should have been conferred for other conditions documented at the time of separation.  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition.  However the Department of Veteran Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time.

RATING COMPARISON:

Service  FPEB--20050111	VA - (13 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5237	10%	DJD, Low Back	5299-5242	NSC	20060210	
Bilateral Hip Pain	5003	10%	DJD, Bilateral Hips	5010	10%	20060210	
Bilateral Knee Pain	5099-5003	0%	Patellofemoral Syndrome, Bilateral Knees	5024	NSC	20060210	
Plantar Fasciitis and Pes Planus	5399-5310	0%	Bilateral Pes Planus with Plantar Fasciitis	5276	0%	20060210	
Bilateral Achilles Tendonitis	Not Unfitting	Bilateral Torn Achilles Tendons	5399-5024	NSC	20060210	
Other x 0	Other x 5	20060210	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20060316 (most proximate to date of separation)

ANALYSIS SUMMARY:  

Low Back Pain.  The CI developed low back pain in mid-2004 without a specific identified injury.  Diagnostic X-ray images (performed 4 months prior to separation), revealed mild narrowing of the L5-S1 disk space but was otherwise normal.  The CI sought medical care approximately 4 months prior to separation for low back pain that was aggravated by prolonged standing or sitting.  The physical exam was normal. 

The MEB narrative summary (NARSUM) examination obtained (approximately 4 months prior to separation) the CI reported no bowel or bladder problems or radicular symptoms.  The physical examination revealed bilaterally negative straight leg raise and referred to the physical therapy’s goniometric range-of-motion (ROM) measurements, obtained 5 months prior to separation, forward flexion of 85 degrees (normal 90 degrees) and a combined ROM of 230 degrees (normal 240 degrees).  Motion was limited by pain.  X-ray images of the lumbosacral spine, obtained 9 months post-separation, were normal.

During the VA Compensation and Pension (C&P) examination (obtained approximately 13 months post separation); the CI reported that while in Iraq he lifted a heavy backpack with armor, which caused him to injury his lower back.  He only notices tight muscle sensation in the lower back when he lifted weights/heavy objects.  The examiner documented, “no functional impairment of any kind”.  The [CI] was able to walk freely with all the activities of daily living and recreational activities.”  He was currently employed as a mail clerk at the local prison.  The physical exam section contained the following statement:

“The range of motion, the veteran was instructed to do forward flexion, extension, etc., but he flatly refused because he claims that it was too painful for him to flex his spine or extend his spine.  Therefore, the range of motion has not been done and along with that the DeLuca requirements have not been also done.· There is clinical evidence of bilateral paraspinous muscle spasm.  There was no evidence of any ankylosis”.

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB applied the analogous code of 5299-5237 (lumbosacral strain) and rated the low back pain condition at 10% citing “flexion limited by pain alone to 85 degrees without deformity noted”.  The VA did not grant service connection to the low back degenerative disc disease condition which they coded 5299-5242 (degenerative arthritis of the spine).  The only evidence probative to the Boards rating recommendation is the physical therapy exam obtained approximately 5 months prior to separation.  That examination documented painful limited forward flexion to 85 degrees which corresponds to a 10% rating using the General Rating Formula of Diseases and Injuries of the Spine.  The Board noted that the VA C&P examination, which was outside the Board’s usual 12 month consideration period, because to the CI’s refusal to comply due to pain there were documentation of low back ROM but X-ray images were normal.  There was extremely limited service treatment record (STR) in evidence related to the low back pain condition for the Board to consider for rating recommendation.  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 FPEB adjudication for the low back pain condition.

Bilateral Hip Pain.  The PEB combined the bilateral hip pain conditions under a single disability rating analogously coded, 5003.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the IPEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  The Board’s initial charge in this case was therefore directed at determining if the FPEB’s combined adjudication was justified in lieu of separate ratings.

The bilateral hip condition was only profiled at entry into the DES.  The commander’s statement noted “leg” conditions as reasons for MEB referral.  Neither hip was ever separately profiled or mentioned in the service treatment records.  The bilateral hip condition was only mentioned in conjunction with the other leg condition (bilateral knee pain) that resulted from immobilization of the CI’s left foot while treating another leg related orthopedic conditions.  There was no specific injury to either hip.  As noted above, there are no unilateral distinctions with regards to fitness considerations.  It is speculative to conclude that the disability confined to a single hip would have rendered the CI incapable of performing his MOS and it is reasonable to surmise that it was the bilateral impairment of both hips which rendered him unfit.  Furthermore, the bilateral diagnosis is supported by a single 5003 based rating for “2 or more major joints” (as also applied by the VA); thus, there is VASRD §4.71a latitude for a bilateral rating.  Members agreed that there were insufficient grounds for recommending separate right and left hip disability ratings in this case.

The CI developed bilateral hip pain after cast placement to his left lower extremity for Achilles tendonitis.  The NARSUM documented that the CI reported 5 out of 10 aching-type of pain that was aggravated by walking and physical therapy.  He noted that his iliotibial band (pertaining to or extending between the ilium and tibia.) popped and was very painful at times and that lying down relieved the pain but pain had worsened over the past 6 months.  Bilateral hip X-rays images obtained on 12 July 2004 revealed mild degenerative changes of the bilateral hips and sacroiliac joints.  

The VA’s C&P examination the CI claimed that in 2004, he started having pain in both hip joints.  He reported being informed that he had degenerative joint disease in that area, that was treated with physical therapy and Motrin which the CI stated helped him to some extent.  The physical examination revealed no pain, weakness, instability, or locking and a normal gait.  The VA examiner used a goniometer (for both hips) show flexion 120 degrees (normal 125 degrees) extension 30 degrees (normal 20 degrees), adduction 25 degrees (normal 45 degrees), abduction 40 degrees (normal 45 degrees) and external rotation 60 degrees (normal 45 degrees).  The DeLuca requirements were applied; no apparent additional functional impairment following repetitive use.

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB adjudicated the bilateral hip pain by applying VASRD code 5003 (degenerative arthritis), rated at 10%.  The VA applied code 5010 (arthritis), due to trauma, substantiated by X-ray image findings, (which refers to 5003 for rating purposes) and also rated the bilateral hip condition at 10%.  Under code 5003, “occasional incapacitating exacerbations” are required for the next higher 20% rating.  There was no evidence of such exacerbations; therefore, the 10% rating was appropriately applied by the FPEB.  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 FPEB adjudication for the bilateral hip condition.

Bilateral Knee Pain.  As noted above, the Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating.  The bilateral knee condition was only profiled at entry into the DES.  The commander’s statement noted “leg” conditions as reasons for MEB referral.  However, neither knee was ever separately profiled or mentioned in the STR.  The bilateral knee condition was only mentioned in conjunction with bilateral hip pain condition that was the resulted from immobilization to treat Achilles tendonitis.  There was no specific injury to either knee or unilateral distinctions with regards to fitness considerations.  It is speculative to conclude that the disability confined to a single knee would have rendered the CI incapable of performing his MOS and it is reasonable to surmise that it was the bilateral impairment of both knees which rendered him unfit.  Furthermore, the bilateral diagnosis supported a single 5003 based rating for “2 or more major joints” (as also applied by the VA); thus there is VASRD §4.71a latitude for a bilateral rating.  Members agreed that there were insufficient grounds for recommending separate right and left knee disability ratings in this case.

The NARSUM documented that there was no specific injury to the CI’s knees.  Physical examination revealed full ROM bilateral knee without effusion or synovitis but moderate patellofemoral crepitus was noted.  X-rays image obtained (approximately 9 months prior to separation) were normal.  

The VA’s C&P examination has similar history to the above summarized NARSUM.  VA’s examiner used a goniometer for bilateral knee ROM, that shown flexion of 135 degrees and extension of 0 degrees (normal 140 degrees and 0 degrees).  There was no pain, weakness, stiffness, or instability noted during the examination.  The gait was normal.  The DeLuca requirement showed no apparent additional functional impairment following repetitive use.

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB adjudicated the bilateral knee condition by applying the analogous code 5099-5003 and rated at 0% citing “…without loss of motion or instability of the joints.  Rated as retropatellar pain syndrome with normal X-ray [images] and full joint motion”.  The VA did not grant service connection for the bilateral knee condition citing “…no objective clinical evidence of a permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service”.  Board deliberations considered that there was no injury to either knee, film X-ray images were normal and the CI’s gait was normal.  There was crepitus noted by the NARSUM examiner, but Board consensus was that crepitus alone is not sufficient evidence to justify compensable joint impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus was that there was insufficient cause to recommend a change in the FPEB adjudication for the bilateral knee pain condition.

Plantar Fasciitis and Pes Planus.  During the NARSUM examination, the CI reported that the feet had a moderate, achy, dull-type pain, rated as a 4 out of 10 pain level; aggravated by walking and relieved with rest.  The CI denied any other non-medical treatment and reported that the plantar fasciitis and pes planus condition worsened over the past 6 months.  There was no further treatment planned.  The physical examination revealed pes planus bilaterally with no tenderness over each foot arch area.  There was tenderness at the level of the plantar fascia and no atrophic changes were noted.  Non-weight bearing plain film X-ray images obtain of the CI’s feet (approximately 9 months prior to separation) was consistent with bilateral pes planus.  

The VA C&P exam documented the CI was treated for pes planus beginning in 2003 and that treatment was “quite successfully” with non-steroidal anti-inflammatory medications and shoe inserts.  The CI was working as a mailroom clerk at a correctional facility and there was no functional loss.  Examination revealed no pain, weakness, and swelling; nor were there any reports of painful motion.

The Board directs attention to its rating recommendation based on the above evidence.  In adjudicating the chronic bilateral plantar fasciitis, the FPEB applied the analogous VASRD code of 5399-5310, Group X muscle injury and rated at 0% for “slight.”  The VA initially used 5276, acquired pes planus and rated at 0% for “mild”.  The VA C&P examination contains language that there was no functional loss, while the NARSUM examiner documented some tenderness to palpation at the plantar fascia and that the CI was functional but had pain in feet only with prolonged activity.  The Board notes that the rating options for both applicable codes, 5310 or 5276, are subjective in nature and Board members agree that the CI’s impairment due to plantar fasciitis or pes planus did not exceed “slight” or “mild” respectively as documented by both the NARSUM and C&P examiners.  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 FPEB adjudication for the plantar fasciitis/pes planus condition.

Contended Bilateral Ankle (Achilles Tendonitis) Condition.  The Board’s main charge is to assess the fairness of the FPEB’s determination that the bilateral Achilles tendonitis conditions were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standards used for its rating recommendations and require a preponderance of evidence.  The bilateral Achilles tendonitis conditions were profiled 14 months prior to the CI’s separation (during deployment), they were not implicated in the commander’s statement nor indicated on the profile completed at entrance to the DES process and were not adjudicated as failing retention standards by the MEB.  All service treatment record’s entries were reviewed by the action officer and considered by the Board.  While the evidence does support that the bilateral Achilles tendonitis conditions were present, the CI was able to complete a year deployment in spite of them.  There was no performance based evidence from the record that the bilateral Achilles tendonitis condition significantly interfered with satisfactory duty performance at the time of separation.  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 FPEB fitness determination for the bilateral ankle (Achilles Tendinitis) contended condition and so no additional disability rating is 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’s likely reliance on DoDI 1332.39 for rating all conditions was operant in this case and the conditions were adjudicated independently of that instruction by the Board.  In the matter of the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral hip pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral knee pain condition and IAW VASRD §4.71a, the Board concluded, by a split 2:1 vote, recommends no change in the PEB adjudication.  In the matter of the plantar fasciitis and pes planus condition and IAW VASRD §4.73, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended bilateral ankle (Achilles tendonitis) condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  The single voter of dissent elected not to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130922, 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, AR20150002638 (PD201301542)

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