RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01773
BRANCH OF SERVICE:  Army	BOARD DATE:  20140508
SEPARATION DATE:  20041021

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SFC/E-7 (92F/Petroleum Supply Specialist) medically separated for chronic bilateral foot pain.  The CI 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 L3 profile and was referred for a Medical Evaluation Board (MEB).  The chronic bilateral foot pain, characterized as “chronic bilateral plantar fasciitis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB. The Informal PEB adjudicated “chronic bilateral foot pain, due to plantar fasciitis” as unfitting, rated 0%.  In rating the condition, the PEB utilized an analogous disability code, citing “U.S. Army Physical Disability Agency Policy/Guidance Memorandum #12, dated 08 April 2002, Subject: Table of Analogous Codes.”  The CI rebutted this finding and demanded a formal hearing.  The Formal PEB affirmed the Informal PEB finding, adjudicating a 0% combined disability for the CI’s bilateral foot condition.  The CI made no further appeals.  As was his option, the CI elected to be released from active duty due to medical disability and transferred to the Retired Reserve List awaiting pay at age 60.

CI CONTENTION:  “I believe that I should have been rated higher than 10% on my Bilateral pes planus with plantar fasciitis aggravated by service, due to the fact that it is a continual, progressively worsening condition.”

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 foot condition is addressed below; and, 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 FPEB – Dated 20040719	VA - (~4 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Foot Pain Due to Plantar Fasciitis	5399-5310	0%	Bilateral Pes Planus with Plantar Fasciitis	5276	10%	20040601	
No Additional MEB/PEB Entries	Other x 4	20040601	
Combined:  0%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20041210 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System 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, operating under a different set of laws.  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.

The PEB combined the right and left chronic foot pain conditions under a single disability rating, coded analogously to 5310 (muscle disabilities, Group X).  Although this approach may comply with service policy, the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW the VA Schedule for Rating Disabilities (VASRD).  If the Board judges that two or more separate ratings are warranted in such cases, it must satisfy the requirement that each “unbundled” condition is reasonably justified as separately unfitting.  The Board's initial charge in this case was therefore directed at determining if the PEB's approach of combining conditions under a single rating was justified in lieu of separate ratings.  If it is judged that one or more of the combined conditions satisfies the unfitting stipulation from above, separate ratings IAW the VASRD are recommend; although, the Board may not recommend a lower combined rating than that achieved by the PEB’s approach.

Bilateral Foot Pain Condition.  An outpatient clinic note on 20 January 2004 reported that bilateral foot pain had been present since the age of 36 (i.e. approximately since 1990) and that symptoms had gradually worsened, but especially over the prior 2 years.  There was no history of trauma.  He no longer jogged due to the pain.  X-rays showed minimal arthritic changes of each great toe, small bilateral posterior heel spurs and no significant pes planus (flat feet).

The MEB separation exam on 29 April 2004 (5.5 months prior to separation) noted minimal tenderness at the ball and heel of each foot.  “Discomfort” was noted in those same areas with weight-bearing.  The narrative summary dictated on 3 May 2004 reported that walking across uneven terrain, running, jumping or heavy lifting exacerbated the pain.  The examiner noted a restriction from marching greater than a-half mile.  The exam revealed “minimal tenderness to deep palpation” of the heels and balls of both feet.  A slight antalgic gait (limp) was present during the initial phase of weight-bearing.  Full range-of-motion (ROM) of the ankles was noted.

At the VA Compensation and Pension (C&P) exam performed 4.5 months before separation, the CI reported pain and stiffness while standing or walking.  Examination revealed a normal gait and bilateral pes planus (flat feet).  Painful motion of each foot was present, but tenderness was absent.  Ankle ROM was noted to be normal.  Slight foot malalignment was present, but corrected by manipulation and bilateral pes planus was reported.  The examiner stated: “He does not have any limitation with standing and walking.  He does not require any type of support with his shoes.”  At an outpatient visit on 1 November 2004 (2 weeks after separation) the CI reported that he was limited to walking no more than one mile.  He was observed to heel-toe walk but reported “some pain when he stands without shoes.”

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered if each foot, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above.  All members agreed that right and left foot pain due to plantar fasciitis, as isolated conditions, would have rendered the CI incapable of continued service within his MOS; and, accordingly merit separate ratings.  The Board considered the PEB’s analogous coding under 5310, which is commonly used for rating plantar fasciitis.  This code confers a 0% rating for “slight,” 10% for “moderate,” 20% for “moderately severe,” and 30% for “severe” muscle disabilities.  Since there is no evidence that the left and right feet were unequal in severity, the separate ratings should be equivalent.  All members agreed that “moderately severe” could not be supported by the evidence and debate settled therefore on a 0% versus a 10% rating.  Examination findings were somewhat variable, with tenderness that was either absent or minimal and gait that was either normal or characterized by the presence of a slight initial limp.  The observation of painful motion by the C&P examiner was noted, but the same examiner also remarked that there was no limitation with standing and walking.  Ultimately, Board members concluded that the evidence just elaborated was most accurately described by the “slight” descriptor and therefore a 0% rating was supported for each foot.  Mindful of VASRD §4.7 (higher of two evaluations) the Board considered the 5276 code (flatfoot, acquired) used by the VA, but concluded that “mild” was the most accurate descriptor under this code and likewise supported a 0% rating.

Given that this 0% rating recommendation is the same as the PEB’s rating, the Board majority concluded that there is no benefit to the CI in unbundling the bilateral foot condition.  Therefore, 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 bilateral foot pain 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.  In the matter of the chronic bilateral foot pain due to plantar fasciitis condition and IAW VASRD §4.73, the Board by a majority vote recommended no change in the PEB adjudication.  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 20130927, 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 XXXXXXXXXXXXXX, AR20150006325 (PD201301773)

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