RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00927
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20141217
SEPARATION DATE:  20050128

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Air National Guardsman E-5 (Aerospace Propulsion Turboprop & Turbo-shaft Journeyman) medically separated for a bilateral foot condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS).  He was issued a P4 L4 profile and referred for a Medical Evaluation Board (MEB).  The MEB identified and forwarded one condition (obstructive sleep apnea [OSA]) for PEB IAW AFI 48-123.  The Informal PEB (IPEB) adjudicated the “obstructive sleep apnea” as existed prior to service (EPTS) and as Category II (condition that can be unfitting but is neither currently compensable nor ratable).  Additionally, the IPEB adjudicated “chronic foot pain secondary to plantar fasciitis” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The IPEB also adjudicated an “overweight” condition as Category III (condition that is not separately unfitting and not compensable or ratable).  The CI appealed to the Formal PEB (FPEB) to have his unfitting bilateral foot condition upgraded to a 30% rating.  The FPEB adjudicated each foot separately, rated 10% and 10% respectively, and applied the bilateral factor, for a combined 20% rating.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “I would like to PDBR to consider all conditions in my PEB/MEB as being unfitting for Military duty and rated accordingly.” The CI also attached 18 pages to his application which was reviewed by the Board and considered in its recommendations. His complete submission, with attachments, 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:

Service FPEB – Dated 20041203	VA - (5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Foot Pain Secondary to Plantar Fasciitis: Left Foot 10%; Right Foot 10%	5310-5399 	20%	Right Heal Spur (Also Claimed as Plantar Fasciitis with Foot Pain	5284	10%	20050630	
			Left Heal Spur (Also Claimed as Plantar Fasciitis with Foot Pain	5284	10%	20050630	
Obstructive Sleep Apnea	Category II (EPTS)	Sleep Apnea	6847	NSC*	20050630	
Overweight	Not Unfitting	No VA Entry	
Other x 0 (Not In Scope)	Other x 13	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20050725 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Bilateral Foot Pain.  Podiatric consultation on 8 October 2003 diagnosed non-traumatic bilateral plantar fasciitis noting bilateral radiographic evidence of heels spurs.  The CI received minimal relief after a 7-month trial of custom orthotics.  A follow-up podiatry examination in June 2004 revealed objective pain along the plantar fascia of both feet and “good range of motion to all [foot] joints.”  The CI’s non-surgical conservative treatments did not relieve his painful symptoms and he was referred for an MEB.  The case file contained an MEB narrative summary examination dated 17 May 2004 (8 months prior to separation) that addressed a non-foot condition, but included a complete examination noting “no lower extremity tenderness.”  The commander’s statement clearly indicated that the CI was able to satisfy all duty requirements of his AFS and that retaining him without restrictions would benefit the local unit and the National Guard.  At the VA Compensation and Pension evaluation on 30 June 2005, 5 months after separation, the CI endorsed bilateral foot pain, stiffness and fatigue at rest with additional weakness upon standing and walking.  His functional impairment was described as limited standing, walking, and climbing stairs.  The VA physical examination revealed normal foot arches and a normal gait.  The examiner noted “no obvious limitations of function for standing or walking and no obvious use of corrective shoe wear.”  Both feet and toes were normal.  There were no findings of painful motion, edema, disturbed circulation, weakness, atrophy or tenderness.  Repeat X-rays revealed a small posterior and plantar heel spur of each foot.  The diagnosis was bilateral heel spur syndrome.

The Board directed its attention to its rating recommendations for the bilateral foot condition and debated several options for coding and rating.  The VASRD does not have a specific code for plantar fasciitis and it must be rated analogously.  The PEB and VA chose different coding options for the condition and both were IAW §4.73 and §4.71a.  Each chose to separately rate and assign 10% to each foot citing pain and radiologic abnormality, respectively.  The PEB utilized a muscle code (5310) whereas the VA utilized the unilateral code of 5284 (foot injuries).  With regard to the 5310 muscle code endorsed by the PEB, the Board noted that there was no disorder of the muscles of the feet present.  However, the 5310 code includes “other important plantar structures: plantar aponeurosis, long plantar ligament, etc…” and therefore, the selection of this code by the PEB is reasonable when applied unilaterally.  Members considered other separate analogous coding schemes and concluded that the 5310 muscle code was the best fit given the pathology present and as being the more conventional choice for this condition.  The separate ratings under this code are based on a judgment of symptom severity (slight 0%; moderate 10%; moderately severe 20%; and severe 30%).  Members agreed that physical findings of normal lower extremities coupled with normal foot ROM, normal gait, and the absence of foot tenderness did not support impairment above the moderate (10%) level under 5310.  The same reasoning was applicable to the VA’s coding choice of 5284, moderate (10%) level.

The Board also considered other bilateral coding avenues to include pathology extending along the entire foot.  Member consensus was that the documentation of normal arches did not support either foot codes of 5276 or 5278 (flat or claw foot).  Additionally, absent specific (non-spur) boney involvement in either foot excluded other bilateral codes such as 5279, 5280, or 5283.  Weakness was not evidenced to support code 5277.  Board members agreed that any other bilateral coding scheme would not support a level above the PEB’s current combined 20% rating and therefore, conferring no additional benefit to the CI.  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 bilateral plantar fasciitis condition.

Other PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the OSA condition was a Category II condition.  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.

Obstructive Sleep Apnea (OSA).  The CI was returned from deployment for evaluation of suspected OSA in 2003.  A sleep study revealed severe OSA with significant associated oxygen desaturation and arousal.  In August 2003, he underwent surgery in an attempt to cure his sleep condition.  A repeat sleep study in 2004 noted no improvement in objective criteria.  The CI indicated that his re-deployment was a direct result of exposures to sandstorms which caused “severe complications to [his] obstructive sleep apnea.”  “My Disease has never progressed or advanced to any degree in the 6 years before my deployment.  It wasn't until March 2003 when my OSA was subjected to the numerous sandstorms of northern Saudi Arabia that I had any problems.”  This was inconsistent with the Post-Deployment Health Assessment where the CI listed “No” when asked while you were deployed, were you exposed to sand/dust?  The MEB examiner stated, “I feel the [CI’s] condition has little impact on the performance of his duties.  However, he should be assigned a limited assignment status.  It is necessary that he use his CPAP machine at night.”  A one year remote VA examination noted “He [the CI] denies daytime hypersomnolence since starting CPAP back in 1996.”

The Board directed attention to its rating recommendation based on the above evidence.  Although OSA was temporarily profiled, it was not implicated in the commander’s statement nor judged to fail retention standards by primary care.  The condition was reviewed by the action officer and considered by the Board.  There was no indication from the record that the OSA 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 OSA condition; and, therefore, no additional disability ratings can be recommended.

Overweight condition.  This condition was forwarded on the informal PEB proceedings.  A diagnosis of overweight or obesity are not ratable conditions IAW both DoD and VA regulations and subject to disability compensation.

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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA and overweight conditions, 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, 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 20140404, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MRB

Dear XXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2014-00927.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

	I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings