RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXX                                  	CASE:  PD-2014-00614	
BRANCH OF SERVICE:  Army                                                                  Separation Date:  20020625

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Trainee) medically separated for chronic foot and back pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  “Bilateral plantar fasciitis” and “chronic back pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic foot and back pain” as unfitting, rated 20% combined (“right 10%”+ “left 10%”), with application of AR 635-40.  The CI made no appeals and was medically separated.  

CI CONTENTION:  Her conditions continue to worsen and negatively impact her daily activities.  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 Veterans Affairs Schedule for Rating Disabilities (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:  

IPEB – Dated 20020507	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Foot and Back Pain	5399-5310	20%	Plantar Fasciitis, Left Foot	5099-5021	10%	20021002	
			Plantar Fasciitis, Right Foot	5099-5021	10%	20021002	
			Back Pain	5299-5295	NSC	20040502	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20030307 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The PEB combined the “Chronic Foot and Back Pain” conditions under a single Service disability rating, coded analogously to 5310 (Group X muscle function) at a combined 20% specifying “bilateral plantar fasciitis and back pain from overuse syndrome” and detailing “Right 10%” and “Left 10%” (and included the bilateral factor).  The Board adjudged that the PEB specified each foot as unfitting and compensable.  It was unclear how the PEB adjudicated or included the back pain condition in their disability rating, but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation.  The Board must therefore apply separate codes and ratings in its recommendations if a compensable rating for the back is achieved IAW VASRD §4.71a.  If the Board judges that an additional separate back rating is warranted, it must satisfy the requirement that the back condition was reasonably unfitting.  

Bilateral Foot Pain Condition.  The CI developed right forefoot pain in 2001 and was placed on crutches.  A right foot bone scan demonstrated an acute stress fracture in the right mid-foot in either the base of the 2nd metatarsal or in the middle cuneiform; a total body bone scan was normal.  The CI was referred to physical therapy for a 4-month history of persistent and worsening bilateral leg and foot pain.  The CI reported pain mainly in her arches and ankles; however, she also said that arch supports given to her by podiatry made her condition worse.  She rated the pain at 10/10.  There were physical exam findings of a mildly antalgic gait secondary to foot pains, full active range-of-motion (ROM) in her ankles (but all motions were very painful), and 3+ tenderness to palpation (TTP).  The podiatrist noted shin splints and reports of pain in both feet.  The CI was issued a permanent P3L3 profile related to chronic low back pain, pes planus and bilateral knee pain.  The narrative summary (NARSUM) exam, approximately 3 months prior to separation, documented that the CI was diagnosed with chronic overuse syndrome for her bilateral lower extremity (BLE) pain with no mechanism of injury.  The examiner noted full ROM of her bilateral lower extremities and “slight tenderness to palpation on both plantar surfaces of her feet bilaterally and on the dorsum of her feet from mid-foot distally.” 

The VA Compensation and Pension (C&P) exam performed approximately 3 months after separation, documented that the CI was involved in a motor vehicle accident (MVA) on 1 July 2002 (within a week of separation) and sustained a left leg fracture and crushed right heel as well as multiple other injuries.  The CI had a mild limp to the left and a right foot X-ray showed degenerative changes along with an old healed comminuted fracture of the right heel.  The left foot X-ray was normal.  There were findings of decreased ankle ROM, healed scars, and tenderness to palpation on the plantar surfaces of both feet.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the bilateral foot condition as 5399 analogous to 5310 (movements of forefoot and toes) and rated at 10% for the right foot and 10% for the left foot.  The VA coded the conditions as 5099 analogous to 5021 (myositis) and rated at 10% for each foot.  The Service exam had the highest probative value for rating at the time of separation as all VA evidence was after a significant injury affecting both lower extremities.  Records documented tenderness of each foot, pain with ambulation, and no relief with use of an insert.  Coding under 5310 would not rise to the “moderately severe” (20%) level for either foot IAW VASRD §4.55 (principles of combined ratings for muscle injuries) and §4.56 (evaluation of muscle disabilities); and there was no compensable ROM for rating under 5021 (myositis) at greater than the 10% already awarded.  There was insufficient evidence of “moderately severe” foot injury for higher rating under 5284 (foot injuries, other).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends that each foot be rated 10% coded 5399-5310.  

Chronic Back Pain Condition:  Treatment notes in January 2002, 5 months prior to separation, indicated a diagnosis of chronic overuse syndrome (including the feet) and the CI was referred for back class/pool therapy and given instructions for back exercises.  X-ray of her lumbar spine showed spina bifida occulta of S1 (a congenital bone opening) but, otherwise, a normal exam.  A treatment note from 28 January 2002 documented “slow and cautious gait.  FAROM (full active ROM) in lumbar spine and B LE (bilateral lower extremities) however, all motions were labored and painful.”  The NARSUM exam noted that the CI had daily low back pain.  She stated that she always had back pain since she was a teenager, but that the pain was never in her entire spine.  The Service entry physical (from December 2000) was silent for any history of back pain and recorded a normal back exam.  The CI complained of the back pain radiating to her neck with an occasional burning sensation that was worse when walking.  The examiner noted “full ROM” of the lumbar spine with slight TTP of the paraspinal muscles in the thoracic and lumbar spine.  

The VA C&P exam documented that the CI was involved in a MVA on 1 July 2002 and sustained a crushed L4-5 vertebrae.  She underwent back surgery on 2 July 2002.  The physical exam findings indicated painful motion limited to 70 degrees forward flexion (historical normal were usually 90 degrees) with slight limitation in extension.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the “Chronic Foot and Back Pain” condition as 5399-5310 (lower extremity muscle coding), however, there was no specific rating or coding that appeared to apply to the back condition.  The Board first addressed whether the back condition was reasonably unfit when separated from the bilateral foot condition.  The CI’s permanent profile included the chronic low back pain with some restrictions that appeared to be specifically related to the back such as sit-ups (not normal restrictions for feet conditions).  The commander’s statement indicated “problems with her lower body and feet” which may have included the back and the MEB separately listed the back condition as a diagnosis for PEB referral.  Board members agreed that the back pain condition was reasonably unfitting and accordingly merited consideration of a separate Service rating.  

The VA coded the back condition as “not service connected, no diagnosis” (NSC) based on the fact that “back pain” was not an accepted diagnosis and that abnormal spine exam results were due to a MVA in July 2002.  The Board agreed that the MEB exam had the highest probative value for rating at separation as the C&P exams occurred after a significant post-separation injury.  

The 2002 VASRD coding and rating standards for the spine, which were in effect at the time of separation, must be applied to the Board’s recommendation IAW DoDI 6040.44.  These earlier criteria were subject to the rater’s opinion regarding degree of severity, as opposed to the more objective current standards with quantifiable rating thresholds grounded in ROM measurements.  Since there was no loss of back (lumbar) ROM the most appropriate code in this case is 5295 as excerpted below:

5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.........................................................40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position..........................................................20
With characteristic pain on motion.............................10
With slight subjective symptoms only...........................0

The NARSUM examiner noted that there was full ROM and slight TTP of the paraspinal muscles in the thoracic and lumbar spine.  However, there was no documentation of limited lumbar or thoracic motion for a compensable rating under codes 5291 or 5292.  The Board then considered the rating criteria for 5295 of 10% versus 0%, as no exam approached the 20% rating criteria.  The treatment note from January 2002 documented characteristic pain on motion, but the NARSUM exam from March 2002 mentioned TTP without specifying if full ROM was with or without pain.  The Board also adjudged that the CI’s symptoms appeared to be greater than “slight” and that there was functional loss IAW VASRD §4.40.  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 chronic back pain condition coded 5299-5295.  

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 reliance on AR 635-40 for rating the combined chronic (bilateral) feet and back pain condition was likely operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the bilateral foot pain condition, the Board unanimously recommends that each joint be separately adjudicated as follows:  an unfitting left foot pain condition coded 5099-5310 and rated 10%, and an unfitting right foot pain condition, coded 5099-5310 and rated 10%, both IAW VASRD §4.73.  In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5295 IAW VASRD §4.71a.  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 recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Bilateral Chronic Foot Pain - Right	5399-5310	10%	
Bilateral Chronic Foot Pain - Left	5399-5310	10%	
Chronic Back Pain 	5299-5295	10%	
COMBINED (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140124, 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 XXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20160003076 (PD201400614)

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 re-characterize 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