RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX 		CASE:  PD 2013-01568
BRANCH OF SERVICE:  Army	 SEPARATION DATE:  20040819

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Combat Engineer) medically separated for feet conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Bilateral plantar fasciitis with pes planus, characterized as not meeting retention standards, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions.  The Informal PEB (IPEB) adjudicated bilateral plantar fasciitis with pes planus as unfitting, rated 0% with presumed application of the 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:  “PTSD 30%, Plantar Fasciitis 30%.”  

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 20040526	VA* - (14.9 to 18.6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Plantar Fasciitis with Pes Planus	5299-5276
5399-5310	0%	Bilateral Pes Planus with Plantar Fasciitis	5276	30%	20051108
20060228	
Other x 2 (Not in Scope)		
Combined:  0%	Combined:  30%%	
*Derived from VA Rating Decision (VARD) dated 20060829 (most proximate to date of separation (DOS))  

ANALYSIS SUMMARY:  

Bilateral Plantar Fasciitis with Pes Planus.  At the MEB narrative summary examination, approximately 5 months prior to separation, the CI reported frequent daily pain, that it was “too painful to start out on [my] toes alone” when taking initial steps and on standing or walking more than 25 minutes.  The CI initially sought treatment 4 months after enlistment for right foot pain with swelling after walking and was diagnosed with plantar fasciitis and bilateral chronic mild pes planus (flat foot).  Treatment included night splints, orthotics (shoe inserts), and a steroid injection of the right foot.  The examiner documented a normal foot arch while seated with “moderate” pes planus on standing; that the gait began with a flat foot and progressed to a “good” toe and heel walk; that the CI had “discomfort on doing the walking in the Childress position [the “duck walk”], good reflexes, [and] good strength…”  Radiographic studies showed bilateral hallux valgus with metatarsus varus primus “bunions,” calcaneal pitch is 16 degrees on the right and 18 degrees on the left, bilateral Achilles calcaneal (heel bone) spurs with degenerative changes of the right calcaneous, and a stress reaction of the outer right tibial (lower leg) cortex compatible with stress reaction….  At the MEB medical examination (DD Form 2808) performed 5 months prior to separation, the CI stated that he had “foot pain (Rt)” and that his “right foot swells after walking a few miles,” and “foot pain when not weight bearing but bearable.”  

The August 2006 VARD stated that the VA Compensation and Pension (C&P) exams, done approximately 15 months (November 2005) and 18 months (February 2006) after separation, were essentially the same however the latter documented accentuated pain on manipulation and use that allowed for increased ratings.  The CI reported pain and burning along the medial instep that radiated to the base of his foot, with the right being more symptomatic than the left and denied any incapacitating foot pain.  The examiner documented bilaterally findings of 8 degrees of valgus at the heel, no plantar callosities and pain to palpation along the medial instep with the epicenter being at the base of the heel.  The C&P examiner from February 2006 documented that walking for 3 minutes on a level treadmill resulted in a significant increase in bilateral foot pain without swelling, fatigability or loss of range of motion and with normal gait on reevaluation.  Radiographs showed pes planus deformities of both feet.  

The Board first considered whether each foot condition remained separately unfitting, having decoupled them from the combined PEB adjudication.  The evidence clearly established that the right foot was more impaired than the left foot.  The disparity was such that the question was raised of whether the left foot was reasonably justified as separately unfitting.  Although the right foot was noted to be the more symptomatic; the foot conditions were linked by common pathology and diagnosis, bilateral designations on all of the medical assessments, were combined on the profile and jointly failed retention standards.  The members agreed, therefore, that attempting to separate out the left foot as not unfitting was overly speculative and arbitrary.  

The Board directed its attention to its rating recommendations for the right and left foot conditions and debated several options for coding and rating.  The VASRD does not have a specific code for plantar fasciitis and it must be rated analogously.  The PEB and VA chose the same coding options (5276, Flatfoot, acquired) for the foot condition and both chose to bundle the feet.  The PEB noted EPTS (existed prior to service) from the entrance exam and designated the bilateral foot condition as service aggravated.  The PEB also chose to assign an analogous muscle code 5399-5310 (Group X).  The Board noted that pes planus could be considered a muscle disorder of the foot and that the 5310 muscle code includes “other important plantar structures: plantar aponeurosis, long plantar ligament, etc…” and therefore, the selection of this code by the PEB is reasonable, however its application in this case did not entail separate ratings.  The Board also acknowledges that the August 2006 VARD assigned a 30% rating to the bilateral foot condition after separation, based on exams remote from separation.  
The Board members deliberated appropriate coding options and concluded that the 5310 muscle code was the best fit given the pathology present and being the more conventional choice for the bilateral foot condition.  For the evaluation of muscle disabilities, under VASRD §4.56, the cardinal signs and symptoms of muscle disability are loss of power, weakness, fatigue, fatigue-pain, etc.  As there was no traumatic injury to this muscle group, the Board relied on its judgment for more subjective assignment of the rated severity.  There was consistent documentation of “fatigue-pain” that would warrant a “moderate” disability rating of the feet.  There was potential evidence of impairment of muscle tonus of each foot, when the examiner documented a normal foot arch while seated with “moderate” pes planus on standing.  It can be argued that the presence and treatment of plantar fasciitis on the right foot and radiographic evidence of a stress reaction of right lower leg establishes the condition was worse on the right.  All members agreed that “moderately severe…20%” or “severe…30%” characterizations were not supported by the evidence.  Deliberations ensued as to rating of the feet under this code.  At the conclusion of deliberations, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends that each foot be coded 5399-5310 and rated separately as follows:  10% for the unfitting right foot condition and 0% for the unfitting left foot condition.  

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.  IAW VASRD §4.73, separately unfitting right foot condition rated 10% and coded 5399-5310 and an unfitting left foot condition rated 0% and coded 5399-5310.  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	
Plantar Fasciitis with Pes Planus, Right	5399-5310	10%	
Plantar Fasciitis with Pes Planus, Left	5399-5310	0%	
COMBINED (w/ BLF)	10%	

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

	

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 Mr. XXXXXXXXXXX, SSN XXX-XX-XXXX, AR20160010192 (PD201301568)

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, accept the Board’s recommendation to modify the individual’s disability rating to 10% without re-characterization 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:

Deputy Assistant Secretary of the Army

CF: 
(  ) DoD PDBR
(  ) DVA