RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00969
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Cannon Crewmember, medically separated for “bilateral foot pain,” with a disability rating of 0%.

CI CONTENTION:  The CI contends his feet continue to worsen and negatively impact daily activities and he was not rated or evaluated for other conditions.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20050325	VARD - 20050817	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Foot Pain	5399-5310	0%	Plantar Fasciitis Left Foot	5284	10%	20050517	
			Plantar Fasciitis Right Foot	5284	10%	20050517	
			Bilateral Pes Planus	5276	NSC	20050517	
Hemorrhoids	Not Unfitting	Hemorrhoids	7336	0%	20050517	
Mild Dyslipidemia	Not Unfitting 	No VA Placement	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Bilateral Foot Pain.  There was no antecedent injury for the CI’s April 2004 onset of bilateral foot pain.  He was managed conservatively with temporary profiles, orthotics, physical therapy (PT), and medication with no significant relief.  X-rays were normal and a bone scan indicated possible “stress reactions” in both feet.  The Podiatrist diagnosed bilateral plantar fasciitis.  Secondary to persistent pain, he was permanently profiled in January 2005 and referred to a Medical Evaluation Board (MEB).  The commander’s statement was specific in noting the CI’s severe restrictions in meeting lifting requirements within his primary Military Occupation Specialty.  The Podiatry MEB narrative summary on 25 January 2005, performed 3 months before separation, noted bilateral foot pain that was aggravated with prolonged standing and jumping.  The physical examination (PE) noted marked tenderness from the inside aspect of both heels and extending into the mid-foot.  The medial aspect of both plantar fascia was described as “tight and prominent.”  His diagnosis was listed as painful unremitting plantar fasciitis, both heels, which was refractory to medical treatment.  The DD Form 2808 documented severe pes planus (flat feet).  

The VA Compensation and Pension (C&P) examination in May 2005, performed 16 days after separation, the CI endorsed “constant and moderate” bilateral foot pain.  The VA physical examination noted low arches and tenderness to the bottom of both feet.  Gait was normal and there was no specific lower extremity range of motion documented.  Repeat X-rays of both feet were normal. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under the analogous code 5299-5310 (Group X, slight) citing full motion and tenderness.  The VA assigned a 10% rating for each foot using code 5284 (other foot injuries) citing tenderness of the feet.  The Board first considered if a combined bilateral rating, as per the PEB approach, was appropriate.  All Board members agreed that the PEB’s use of 5299-5310, (muscle code) was inconsistent with §4.55 VASRD guidelines for rating bilateral conditions.  Board members agreed that VASRD code 5276 (flatfoot) was more appropriate in the setting of bilateral flat feet.  There were no distinctions with regard to clinical features or fitness considerations between the left and right foot and the Board agreed the findings were best described as moderate.  The bilateral diagnosis supported a single 5276 rating for “moderate” disability in accordance with §4.71a.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommended a disability rating of 10% (moderate), coded 5299-5276 for the bilateral foot condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that hemorrhoids and dyslipidemia were 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.  These conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   Both conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that either 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’s fitness determination for the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the bilateral foot condition, the Board by a majority vote recommends a single impairment rating of 10%, analogously coded 5299-5276 IAW VASRD §4.71a.  The single voter for dissent did not choose to submit a minority opinion.  In the matter of the two contended 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.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
Bilateral Foot Pain	5299-5276	10%	
RATING 	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150317, 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 XXXXXXXXXXXXXXXXXX, AR20160006737 (PD201400969)

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, accept the Board’s recommendation to modify the individual’s disability rating to 10% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA