RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00050	
BRANCH OF SERVICE:  Army	BOARD DATE:  20150220
SEPARATION DATE:  20080627

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Petroleum Supply Specialist) medically separated for a right foot condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The foot condition, characterized as “right Achilles tendonitis with exostosis of the calcaneus” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions “obstructive sleep apnea,” carpel tunnel syndrome,” “migraine” and “tendonitis” as medically acceptable, for PEB adjudication.  The Informal PEB adjudicated “right Achilles tendonitis” as unfitting, rated 10%, with 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:  “I want all MEB/PEB conditions reviewed and to be considered for being unfit for duty and rated. I believe that the difference between the rate received by the Army and the rate received by VA is inaccurate. Army rate was 10%, VA first rate was 70% then it was increased to 80% and the latest rate finally was increased to 100% (UNEMPLOYABILITY PERMANENT).”  The CI listed the conditions on page 2, item 12, of DD 294, application, which was reviewed by the Board and considered in its recommendations.

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 20080409	VA - (4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Achilles Tendonitis	5024	10%	Right Achilles Tendinitis	5024	10%	20081017	
Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20081017	
Carpal Tunnel Syndrome	Not Unfitting	Left Wrist Carpal Tunnel Syndrome	8515	10%	20081017	
		Right Wrist Carpal Tunnel Syndrome	8515	10%	20081017	
Migraine	Not Unfitting	Migraine Headaches	8100	10%	20081017	
Patellar Tendonitis	Not Unfitting	Shin Splints	5299-5262	NSC	20081017	
Other x 2 (Not in Scope)	Other x 3 	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20081017(most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

Right Achilles Tendonitis.  The service treatment record indicated that the CI developed insidious onset of bilateral heel pain during 2005.  Nuclear radiographic findings revealed bilateral (right > left) plantar fasciitis (PF) and bilateral Achilles tendonitis, “if clinically correlated.”  The CI had a temporary profile dated 14 October 2005; set to expire on 14 January 2006, that listed the diagnoses of bilateral shin splints, PF, and right-sided Achilles tendonitis.  All clinical encounters subsequent to the temporary profile strictly involved issues with the right foot only.  X-rays of the right foot revealed an abnormal attachment involving the plantar fascia and the Achilles tendon (enthesiopathy).  On 29 November 2006, the CI underwent surgical excision of a boney abnormality (heel spur) from the bottom of his right heel.  Initially, his foot pain improved, but only for a short time.  Within 2 months, his right heel pain returned.  Podiatry follow-up documented another heel spur on the back side of the CI’s right foot.  His heel pain returned to a pre-surgical level and the CI was referred for an MEB.  At the MEB examination (performed 5 months prior to separation), the CI reported right heel pain aggravated by weight-bearing activities.  The physical examination (PE) noted tenderness about the back of the right heel/ankle.  There was decreased and painful ankle motion.  The diagnosis was right Achilles tendonitis and his pain rating was “slight” and “frequent.”  

At the VA Compensation and Pension (C&P) examination (performed a month prior to separation), the CI reported continued right heel pain with walking.  His PE revealed a normal gait and painful limited ROM.  The goniometric 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.

   Right Ankle ROM
(Degrees)	MEB ~ 5 Mo. Pre-Sep
(20080207) 	VA C&P ~ 1 Mo. Pre-Sep
(20080522) 	
Dorsiflexion (20 Normal)	6	10	
Plantar Flexion (45)	32	FROM	
Comment	painful motion	painful motion	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition under VASRD code 5024 (tenosynovitis) at 10%.  The VA rated the same citing limited and painful motion.  Board members first agreed that sufficient evidence of painful motion was present to justify the Service rating of 10% IAW §4.59.  Board members then considered the limited ROM as a coding option which might yield a higher rating.  VASRD Code of 5271, (ankle limited motion) yields 10% for “moderate” and 20% for “marked” limitation.  Members agreed that the ROM values in evidence would not support the higher 20% ‘marked’ limitation of motion under 5271.  After due deliberation and consideration of the totality of the evidence, the Board concluded that there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the right foot condition. 

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the obstructive sleep apnea (OSA), carpal tunnel syndrome (CTS), patellar tendonitis, and migraine conditions 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 OSA, CTS, patellar tendonitis, and migraine conditions were not permanently profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All conditions were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any of these conditions 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 any of these conditions and so no additional disability ratings are 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.  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 right foot condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA, CTS, patellar tendonitis, and migraine conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 20131912, 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 XXXXXXXXXXXXXXXXXXXX, AR20150015850 (PD201400050)

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