RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00303
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080317

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Petroleum Supply Specialist) medically separated for a bilateral foot and ankle pain and a pelvic pain conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The “plantar fasciitis, bilateral,” “chronic ankle instability, bilateral,” and “chronic pelvic pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  One other condition medically acceptable condition (anxiety disorder) was submitted by the MEB.  The Informal PEB combined and adjudicated “bilateral foot and ankle pain” and “pelvic pain,” as unfitting, rated 0% and 0%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The anxiety disorder condition was determined to meet medical retention standards.  The CI made no appeals and was medically separated

CI CONTENTION:  She was given a higher rating for her conditions by the VA.  Additionally, she was not evaluated for her degenerative arthritis lumbar spine and varicose vein condition.  Her complete submission is at Exhibit A.

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 

PDA Corr IPEB - Dated 20080417	VA* - (~5 Mos. Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Foot and Ankle	5399-5310	0%	Ankle Sprain left	5299-5271	10%	20080806	
			Ankle Sprain Right	5299-5271	10%		
			Plantar Fasciitis Bilateral	5099-5277	10%		
Pelvic Pain	5099-5003	0%	Ovarian Cysts…Pelvic Pain	7615	0%		
Anxiety Disorder	Not Unfitting	Anxiety Disorder	9413	10%	20080804	
Other Conditions x 0 (Not In Scope)	Other x 9 	
RATING:  0%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20080821 (most proximate to date of separation [DOS]).  
ANALYSIS SUMMARY:  

Bilateral Foot and Ankle Condition.  Treatment records evidence that the CI initially presented with right ankle pain in 2006.  She was diagnosed with a right ankle strain.  A magnetic resonance imaging study performed 28 July 2007 demonstrated mild degenerative changes at the ankle (anterior tibiotalar space) and foot (talonavicular).  The CI was treated with activity modification, anti-inflammatory medications, and physical therapy.  A physical therapy note dated 12 September 2006 documented a history of bilateral ankle pain; right greater than left.  The CI was deployed in September 2006.  A podiatry note dated 4 September 2007 documented that the CI was treated with physical therapy, stretching, ice massages, orthotics, Celebrex, and night splints for bilateral plantar fasciitis from November 2006 without pain improvement.  The examiner also noted bilateral ankle pain and instability.  At the narrative summary (NARSUM) examination 3 months prior to separation, the CI reported 7-8/10 bilateral foot pain which increased with activity and wearing battle gear.  She also reported rolling of her ankles.  The physical examination revealed moderate heel tenderness to palpation bilaterally and mild tenderness at the Achilles tendon insertion.  The examiner noted “excellent” range-of-motion (ROM) of the feet and ankles.  Diagnoses of plantar fasciitis and chronic ankle instability were rendered.  At the VA Compensation and Pension (C&P) examination performed 5 months after separation, the CI reported minimal ankle pain and bilateral foot pain and stiffness with standing and walking.  The physical examination demonstrated a normal gait with painful, but full, ankle range of motion. There was no evidence of ankle instability.  Both feet were tender to palpation at the heels.  Diagnoses of bilateral plantar fasciitis and bilateral ankle strain were rendered.  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.

Ankle ROM
(Degrees)	MEB/PT ~7 Mo. Pre-Sep
	VA C&P ~5 Mo. Post-Sep
	
	Left	Right	Left	Right	
Dorsiflexion (20 Normal)	25,25,25	20,25,25	20	20	
Plantar Flexion (45)	70,70,70	70,70,70	45	45	
Comment					
§4.71a Rating	10%	10%	10%	10%	
The Board directed its attention to its rating recommendation based on the above evidence.  The PEB combined the bilateral plantar fasciitis and chronic ankle instability conditions under a single Service disability rating, coded analogously to 5310 (Muscle injury Group X) and rated as plantar fasciitis at 0% for each side. VA rated the bilateral plantar fasciitis condition at 10% coded 5099-5277 ( analogous to weak foot, bilateral) and the chronic bilateral ankle strain condition at 10% for each ankle; coded 5299-5271 (analogous to ankle limitation of motion , moderate).  IAW DoDI 6040.44 if the PEB combined adjudication is not VASRD compliant, each condition subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for Service rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. Both conditions were profiled and implicated in the commander’s statement.  Multiple treatment notes evidenced bilateral foot pain and bilateral ankle instability with pain.  Members agreed that the evidence supports that the functional limitations of the bilateral plantar fasciitis left ankle chronic pain with instability, and right ankle pain with instability could be reasonably justified as separately unfitting.
The Board then deliberated rating of the bilateral plantar fasciitis condition.  The Board considered VASRD codes 5276 (acquired flatfoot), 5277(weak foot, bilateral), 5310 (muscle injury Group X) and 5279 (metatarsalgia).  Members agreed that the bilateral plantar fasciitis condition met criteria for a 10% rating under each coding option.  There was no evidence of moderately severe muscle dysfunction or symptoms analogous to severe flatfoot for a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the bilateral plantar fasciitis condition.  The Board then considered the rating of the left and right chronic pain and instability.  The Board noted that although there was no evidence of ankle limitation of motion, there was subjective and objective evidence of ankle pain and instability which impacted the CI’s ability to perform here duties.  The Board noted that multiple treatment notes documented subjective reports of bilateral ankle pain supported by objective finding for a minimal rating IAW VASRD 4.40 (Functional loss).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the each ankle pain with instability condition.  

Pelvic Pain Condition.  A pain management note dated 15 October 2007 documented that the CI was medically evacuated from Iraq secondary to abdominal pain in July 2007.  The CI underwent an exploratory laparoscopy in August 2007 which demonstrated residuals of a ruptured cyst, but was otherwise negative.  A colonoscopy and endoscopy for gastrointestinal etiology was negative except for gastritis (inflammation of the stomach). A diagnosis of chronic pelvic pain was rendered.  The narrative summary (NARSUM) abdominal examination demonstrated mild diffuse abdominal tenderness to palpation with a diagnosis of chronic pelvic pain.  At the VA Compensation and Pension (C&P) exam performed 5 months after separation, the CI reported that she no longer had pelvic pain.  The pelvic and abdominal examinations were normal. A diagnosis of ovarian cyst with a history of pelvic pain was rendered.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the unfitting pelvic pain at 0%; coded 5009-5003 (analogous to degenerative arthritis).  The VA rated the condition at 0%; coded 7615 (ovarian disease, injury, or adhesions of).  The Board considered whether the evidence supported a higher than 0% rating.  The board noted that the record evidence a history of a ruptured ovarian cyst.  Approximately 3 months prior to separation there were reports of sharp stabbing, constant pain and objective findings of diffuse abdominal tenderness.  At the time of the NARSUM there was evidence of mild diffuse abdominal pain and the examiner noted that her abdominal pain condition was “still in transition.”  At the VA examination 5 months after separation, there were no subjective or objective reports of persistent abdominal pain.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 0% for the pelvic pain condition was appropriately recommended in this case.  The Board concluded therefore that this condition could not be recommended for additional disability rating

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that anxiety disorder was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The anxiety disorder was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.   All were reviewed and considered by the Board.  There was no performance based evidence from the record that the anxiety disorder condition 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 the contended anxiety disorder 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 bilateral plantar fasciitis condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5277 IAW VASRD §4.73.  In the matter of the right ankle condition, the Board unanimously determined that it was unfitting and recommends a disability rating of 10%, coded 5299-5271 and in the matter of the left ankle condition, the Board unanimously determined that it was unfitting and recommends a disability rating of 10%, coded 5299-5271, IAW VASRD §4.71a.  In the matter of the contended anxiety, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:  

CONDITION	VASRD CODE	RATING	
Bilateral Plantar Fasciitis	5299-5277	10%	
Left Ankle Pain 	5299-5271	10%	
Right Ankle Pain 	5299-5271	10%	
Pelvic Pain Condition	7615	0%	
COMBINEDw/BLF	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140108, 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 XXXXXXXXXXXXXXXXXXXXXXXXXX, AR20160000203 (PD201400303)

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA