RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX  	 CASE:  PD-2014-00672  
BRANCH OF SERVICE:  Army	 BOARD DATE:  20150717  
SEPARATION DATE:  20031010  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Information System Operator) medically separated for a bilateral foot condition. The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “tarsal tunnel syndrome bilateral feet” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The informal PEB adjudicated “bilateral tarsal tunnel syndrome” as unfitting, rated 0%.  The CI made no appeals and was medically separated.

CI CONTENTION:  Her conditions continue to worsen and negatively impact her daily activities.  New conditions have been added since separation.  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.  In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination, and rating in accordance with VASRD §4.129 and §4.130.  

RATING COMPARISON:  

Service IPEB – Dated 20030625	VA* - (~1 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Tarsal Tunnel Syndrome	8799-8725	0%	Tarsal Tunnel Syndrome w/Plantar Fasciitis, Right	5276-8525	10%	20030909	
			Tarsal Tunnel Syndrome w/Plantar Fasciitis, Left	5276-8525	10%	20030909	
Dysthymia	Not Reviewed	Dysthymia	9433	10%	20030909	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 9		
RATING:  0%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20031024 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

Bilateral Tarsal Tunnel Syndrome Condition.  The service treatment record (STR) detailed that the CI was seen in January 2002 (21 months pre-separation) for “recalcitrant bilateral plantar fasciitis.”  The CI had tenderness over the plantar fascia that, by history, was worse with first weight-bearing and resolved after walking for 10 minutes.  The narrative summary (NARSUM) reported that the CI had the onset of foot numbness and pain during training runs in 2002.  A bone scan showed stress changes in the metatarsal bones (longitudinal bones in the middle of the foot).  Despite treatment she had continued numbness in her feet when standing or wearing boots for a long period of time, and was referred to a neurologist, who determined that she had tarsal tunnel syndrome via nerve and muscle tests (electromyelogram and nerve conduction study).  She was referred to orthopedics and had surgery (tarsal tunnel release) on her right foot in February 2003 (8 months pre-separation).  However, she had return of the same symptoms with return to activity, and was referred for a MEB.  

The CI was seen in the flight medicine clinic on 22 April 2003 (7 months pre-separation) “to discuss permanent profile.”  A DA Form 3349, Physical Profile, was generated and listed the medical condition as, “Chronic Tarsal Tunnel - Bilat[eral] Foot Pain.”  The profile included restrictions on running, walking, bicycling, and footwear (“may wear athletic footwear in uniform”).  In a memorandum to the PEB, the CI’s commander stated that the CI’s condition prevented her from running and standing for any length of time.  

At the NARSUM on 20 May 2003 (5 months pre-separation), the CI complained of bilateral foot pain and numbness, right greater than left.  On examination, there was a well-healed surgical incision on the right foot, with decreased sensation about the area of the incision.  She had a positive Tinel's sign with percussion about this incision, which shot electrical-type pulsations down to her big toe.  Otherwise, there was normal (5/5) motor, normal sensation, and full- range-of-motion (ROM) of her ankle and tarsophalangeal joint.  The left foot had full ROM, negative Tinel's sign about the tibial nerve, “5/5 motion,” normal sensation, and a negative Tinel’sign.  There was no tenderness to palpation of either foot.  

A DD Form 2807-1, Report of Medical History, was completed on the following day, and the CI reported plantar fasciitis of both feet and tarsal tunnel syndrome on the right.  In the accompanying examination (DD Form 2808, Report of Medical Examination), the CI had, “good ROM all joints, good heel walk, good toe walk.”  Neurologic examination was noted to be “normal” with no mention of tenderness.

The VA separation exam was completed on 9 September 2003 (1 month pre-separation).  The CI stated that she had numbness in both of her feet, and had pain after running more than a quarter mile or being on her feet for more than 30 minutes.  She had also been diagnosed with bilateral plantar fasciitis, and orthotics did not help.  She stated that “the foot doctor told her that she has a severe case of it, and he thinks that that only thing they can do to release it is surgery,” but she was not interested in surgery at the time.  On examination, she had normal strength (5/5) of upper and lower extremities, was able to stand on her toes and on her heels, complained of numbness to both heels with palpation, and complained of pain with palpation of the right heel area and the plantar fascia heel areas bilaterally.  

The Board directed attention to its recommendation based on the above evidence.  The PEB combined (“bundled”) the right and left foot conditions as a single unfitting condition rated 0%, coded analogously to 8725 (posterior tibial nerve neuralgia).  Alternatively, the VA rated each ankle separately at 10%, using analogous code 5276-8525 (acquired flatfoot–posterior tibial nerve paralysis).  Although VASRD §4.71a permits combined ratings of two or more joints under 5003 (under certain conditions), it also allows separate ratings for separately compensable joints. The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each Service disability rating.  In this case, both ankles had been symptomatic for over 17 months by the time of the MEB.  Both ankles were considered to fail retention standards; both were implicated by the NARSUM and in the commander’s statement; and, both were profiled.  Members agreed, therefore, that each ankle should be reasonably conceded as separately unfitting.  

Tarsal tunnel syndrome is caused by compression of the tibial nerve (also known as the posterior tibial nerve) or its associated branches as the nerve passes underneath the flexor retinaculum at the level of the ankles, so rating under code 8525 or 8725 is appropriate.  Although findings on physical examination were minimal (tenderness but no weakness or loss of sensation), the pain with extended walking and standing constituted functional impairment that was linked (via the commander’s memorandum) to fitness.  §4.40 states “a part which becomes painful on use must be regarded as seriously disabled,” and there was ample evidence that such was the case for both ankles with this condition.  Rating under peripheral nerve codes entails a judgment call regarding the severity of incomplete paralysis, especially the “mild”’ vs. “moderate”’ distinction.  Members agreed that a fair threshold for the “moderate” (or higher) rating should entail functionally significant motor and/or sensory impairment encroaching on some occupational tasks.  It was concluded that there was insufficient evidence that this threshold was met, and members agreed that the conditions (both feet) should be characterized as “mild incomplete paralysis.”  Whether the conditions are rated under codes 8525 or 8725 is moot, since mild incomplete paralysis is rated at 10% under both codes.  A higher rating would not be supported under code 5276 (disregarding the argument that plantar fasciitis was not mentioned by the MEB or PEB, and thus not in scope) as there was no marked pronation or other objective evidence of marked deformity.  Consideration of the functional loss under code 5003 would not lead to a higher rating, and there was no other applicable rating under the musculoskeletal or neurological codes.  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 right tarsal tunnel syndrome condition, and 10% for the left tarsal tunnel syndrome condition.  

Contended Dysthymia Condition.  The CI presented to MH clinic in June 2001 (2 years pre-separation) and noted feeling overwhelmed and tired all the time with mood swings and a long history of depression and irritability.  The next month, the CI was given a diagnosis of major depressive disorder (MDD), recurrent.  In December 2001, the same psychiatrist diagnosed her with “depression NOS [not otherwise specified], rule-out dysthymic disorder, rule-out Axis II issues.”  In January 2002, the CI thought she had attention deficit hyperactivity disorder (ADHD) and wanted to take Ritalin, but the psychiatrist did not support that diagnosis.  Neuropsychological testing was performed in January 2002 (21 months pre-separation), and she was given the diagnoses of dysthymia and personality disorder NOS.  The psychologist stated, “To this time patient has not experienced any negative impact on duty performance or experienced any difficulties that would preclude military service.  As such, pt [patient] is fully qualified for military service.”  

On 24 March 2003 (7 months pre-separation), the CI reported that she had “great effect” on her antidepressant medication (Effexor XR), but she had experienced 30-pound weight gain.  Her diagnoses were dysthymia and personality disorder traits; her Global Assessment of Functioning (GAF) was 78 (if symptoms are present, they are transient and expectable reactions to psychosocial stressors [e.g., difficulty concentrating after family argument]; no more than slight impairment in social, occupational or school functioning [e.g., temporarily failing behind in schoolwork) and her medication was changed to Remeron.

A temporary DA Form 3349, Physical Profile, was generated on 8 May 2003 (5 months pre-separation) and depression was listed as the medical condition, but it was not characterized as disqualifying (S1) (remarks noted exemption from height/weight requirements due to effects of prescribed medication).  In an undated statement to the PEB, the CI’s commander stated that the CI’s condition kept her from running and standing for any length of time.  The commander also stated, “SGT XXXXXXXXXXX is an exemplary soldier, dedicated to completing her assigned tasks and always seeking to improve herself.  She has shown outstanding ability to work in all positions in her computer field, as well as telephone repair/maintenance.”  

No psychiatric diagnosis or condition was mentioned in the NARSUM (20 May 2003).  On the DD Form 2807, Report of Medical History, on the following day, the CI stated that she was being treated for depression and had borderline personality disorder.  On the accompanying DD Form 2808, Report of Medical Examination, the CI had diagnoses of depression and borderline personality disorder.  No psychiatric diagnosis was mentioned by the MEB or PEB.  

At the VA separation exam on 9 September 2003 (1 month pre-separation), the CI stated that her depression was being controlled with Effexor.  The medication had caused her to gain some weight but, “… she would rather be on it and be overweight than be depressed.”  The diagnosis was “depression with residual, controlled,” and the clinical plan was to continue current therapy and follow-up as needed with primary care.  

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military disability evaluation system (DES).  Although a diagnosis of personality disorder was added after psychological testing in January 2002, the Axis I diagnosis of dysthymia was continued through the last available psychiatric note.  Depression and borderline personality disorder were documented on the DD Form 2808, but no MH condition was referred to the MEB or PEB.  The CI, therefore, did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The psychiatric condition (described as MDD, depression, and dysthymia) was not profiled as disqualifying or implicated in the commander’s statement, and was not judged to fail retention standards.  The condition was evaluated in May 2003 and found to be not-disqualifying, and the service treatment record did not reflect any deterioration of the CI’s condition between then and her date of separation.  There was no performance based evidence from the record that this 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 that any MH condition rose to the level of being unfitting at the time of separation 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.  As discussed above, PEB reliance on USAPDA policy for rating the tarsal tunnel syndrome was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right tarsal tunnel condition, the Board unanimously recommends a disability rating of 10%, coded 8799-8725 IAW VASRD §4.124a.  In the matter of the left tarsal tunnel condition, the Board unanimously recommends a disability rating of 10%, coded 8799-8725 IAW VASRD §4.124a.  In the matter of the contended dysthymia condition, the Board unanimously agrees that it cannot recommend any MH condition for disability rating.  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 her prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Right Tarsal Tunnel Syndrome Condition	8799-8725	10%	
Left Tarsal Tunnel Syndrome Condition	8799-8725	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140127, 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, AR20150015842 (PD201400672)

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,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization 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:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA