RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	    CASE:  PD-2014-01302
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Medical Laboratory Specialist) medically separated for lumbar spine, hip, knee, and foot conditions which could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The diagnoses “chronic low back pain,” “bilateral greater trochanteric bursitis,” “bilateral plantar fasciitis,” “bilateral patellar tendonitis,” and “bilateral Achilles tendonitis” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded a uterine fibroids condition determined to meet retention standards.  The Informal PEB adjudicated “lumbar degenerative disc disease [DDD],” “bilateral trochanteric bursitis,” “bilateral patellar and Achilles tendonitis,” and “bilateral mild plantar fasciitis” as unfitting, rated 10%, 0%, 0% and 0%, respectively.  Criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD) were referenced, specifically for the lumbar condition; but, language for the conditions rated 0% (specifically “range of motion limited by pain”) was also consistent with Army Regulation (AR) 635-40 (B-24, f).  The uterine fibroids condition was determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI elaborated no specific contention in her application.  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 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 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:  

Admin PEB - Dated 20080324	VA* - (3 Wk. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar DDD	5299-5242	10%	Lumbar Strain	5242	10%	20080307	
Bilateral Trochanteric Bursitis	5019	0%	Trochanteric Bursitis, Right Hip	5099-5019	10%	20080307	
			Trochanteric Bursitis, Left Hip	5099-5019	10%	20080307	
Bilateral Patellar and Achilles Tendonitis	5024	0%	Degenerative Arthritis, Right Knee	5099-5024	10%	20080307	
			Degenerative Arthritis, Left Knee	5099-5024	10%	20080307	
			Achilles Tendonitis, Right	5099-5024	10%	20080307	
			Achilles Tendonitis, Left	5099-5024	10%	20080307	
Bilateral Mild Plantar Fasciitis	5399-5310	0%	Plantar Fasciitis, Right	5299-5284	10%	20080307	
			Plantar Fasciitis, Left	5299-5284	10%	20080307	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 11	
RATING:  10%	RATING:  90%	
*Derived from VA Rating Decision (VARD) dated 20080611 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY: 

Lumbar Spine Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an onset (with sit-ups) of low back pain over 3 years prior to separation.  Magnetic resonance imaging (MRI) demonstrated DDD (bulging L5/S1 without neural encroachment).  There are STR notes of occasional bilateral sensory complaints, and a couple of entries recorded non-dermatomal sensory deficits; but, there were no complaints of weakness, and all entries confirm normal (5/5) strength and reflexes.  It was judged that electrodiagnostic testing was not indicated, surgery was not recommended, and the CI’s pain did not respond to a protracted trial of conservative measures.  There were STR entries documenting grossly normal range-of-motion (ROM) with none to the contrary.  There were earlier STR entries mentioning antalgic gait, but later ones recorded normal gait, and there was STR confirmation of normal spinal contour.  There were no STR entries contrary to any of these ratable features, or documentation of incapacitating episodes.

The NARSUM was conducted 28 November 2007 (4 months pre-separation), and is supplemented by an addendum from Physical Medicine (PM) from 6 weeks earlier (12 October 2007).  More detailed pain descriptions and functional limitations are taken from the PM examination.  This documented continuing back pain rated 3-4/10 (“moderate and constant” in NARSUM) “aggravated with standing for more than ten minutes, sitting for more than fifteen minutes, and climbing stairs.”  The physical examination (consolidated from both sources) recorded a normal gait, mild tenderness, and no spasm.  The PM examiner noted fine touch sensory deficits in the right sciatic dermatome (sensory “grossly intact” per NARSUM), but both examiners recorded normal strength (5/5) and reflexes.  The NARSUM cited physical therapy (PT) ROM measurements of flexion to 90 degrees (normal) and combined ROM of 240 degrees (normal), annotating painful motion.  The PM examiner, however, recorded 30-50% reductions in various planes (not compliant with VASRD §4.46 [accurate measurement]).  The NARSUM and PM examiners both noted indicators of unreliable findings (positive Waddell’s signs).  

A VA Compensation and Pension (C&P) examination was conducted 7 March 2008 (3 weeks pre-separation) and documented “constant” pain radiating to both legs (denying weakness) rated 10/10 “elicited by physical activity and stress.”  The VA physical examination recorded normal gait and spinal contour, the absence of tenderness or spasm, and normal neurologic findings (motor, sensory, reflexes).  The VA measured ROM was normal in all planes, annotating painful motion.  The VA examiner opined that there were “no signs of intervertebral disc syndrome ... [or] ... nerve root involvement.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5242 (degenerative arthritis of the spine) was consistent with VASRD §4.71a criteria for the ROM (conceding painful motion) and ratable evidence.  The VA’s 10% rating under 5242 cited painful motion.  There was no ROM evidence supporting a rating higher than 10%, no evidence of gait or spinal contour abnormality in support of a 20% rating, no evidence of additionally ratable peripheral nerve impairment, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  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 of the thoracic spine condition.

Bilateral Hip Condition(s).   There were no STR entries addressing an isolated complaint of hip pain, but it is referenced in outpatient records along with the other orthopedic complaints in this case, and the working diagnosis was trochanteric bursitis.  The NARSUM documents an atraumatic onset about 2 years prior to separation.  A bone scan, X-rays, and MRI were all negative for hip pathology.  There are no STR entries indicating significant ROM limitations, joint impingement or instability, significant functional limitations, periods of incapacitation, or other ratable evidence.  

The NARSUM related bilateral hip pain “75-100% of the time” which the PM examiner rated 3-4/10, stating that it was aggravated by the same activities as those previously listed for the back.  The consolidated physical examination (recall normal gait) recorded bilateral joint tenderness with no other positive findings.  The NARSUM cited PT ROM measurements of bilateral flexion to 95 degrees (normal 125, minimum compensable 45), bilateral extension to 0 degrees (referencing a scale assigning 0 as normal), bilateral external rotation of 45 degrees (normal), abduction to 35 degrees left/40 degrees right (normal 45, minimum compensable 10), and adduction to 30 degrees left/25 degrees right (normal 45, minimum compensable “cannot cross legs” [~10 degrees]).  The PM examiner’s hip ROM was given as passive and was therefore not relevant to VASRD rating.  Neither the profile nor the commander’s performance statement provided evidence probative to separate fitness implications of either hip.  The same is true of the remaining bilateral conditions to be addressed.

The pre-separation C&P examination documented bilateral hip pain in 5-hour episodes occurring 20 times weekly, rated 8/10 and “elicited by physical activity.”  The VA physical examination (recall normal gait) recorded bilateral joint tenderness with no other positive findings.  The VA measured ROM (bilateral) was flexion to 110 degrees, extension to 20 degrees (VASRD normal), external rotation of 45 degrees, abduction to 45 degrees, and adduction to 25 degrees, annotating painful motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s bilateral rating of 0% under code 5019 (bursitis, defaulting to criteria of 5003 [degenerative arthritis]) does not comport with the VASRD §4.71a stipulation for a 10% rating under 5003 for “2 or more major joints”, the latter without regard to ROM limitation or other factors.  The VA’s separate minimum compensable ratings under the same code invoked painful motion.  The evidence does not support a compensable rating under any of the codes for limitation of motion at the hip; and, there is no ankylosis, fracture deformity, flail joint or instability, nonunion/malunion, that would achieve separate ratings higher than 10%.  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 disability rating.  In this case there are no unilateral distinctions with regards to clinical features or fitness considerations.  It is speculative to conclude that the disability confined to a single joint would have rendered the CI incapable of performing within her MOS; and, it is reasonable to surmise that it was the combined effect of both hips which rendered her unfit.  Especially since the bilateral diagnosis supports a 5003-based compensable rating as noted above, members agreed that separate right and left disability ratings are not indicated in this case.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board consensus recommendation is a 10% rating for the bilateral hip condition under code 5019.

Bilateral Knee Condition(s) - Not Subsuming Achilles Tendonitis. The Board judged that the Achilles tendonitis condition was logically more associated with the foot condition(s), and it is thus subsumed with the foot condition(s) as below; therefore, this evidence and rating analysis is limited to the bilateral knee condition(s).  As with the hips this condition was not addressed discretely in the STR, but in concert with the other orthopedic complaints in this case.  An early (2005) MRI of the left knee demonstrated an unexplained effusion, but intact menisci and ligaments.  Bilateral X-rays (4 months pre-separation) were interpreted with degenerative changes on the right and were normal on the left, and a bone scan was negative.  There were no STR entries indicating significant ROM limitations, joint impingement or instability, significant functional limitations, periods of incapacitation, or other ratable evidence.  

The NARSUM documented a four year history of atraumatic bilateral knee pain without further elaboration, although it provided detailed physical examinations.  The PM addendum documented bilateral knee pain rated 6/10 “aggravated with walking, climbing stairs, and standing after prolonged sitting.”  The consolidated physical examination (recall normal gait) recorded (all bilateral) some quadriceps atrophy, joint tenderness, the absence of effusion, stability to stress testing in all planes, and negative signs of meniscal impingement.  The NARSUM cited PT ROM measurements (bilateral) of flexion to 135 degrees (normal 140, minimum compensable 45) and extension minus 5 degrees (normal 0, minimum compensable minus 10).  The PM examiner recorded bilateral flexion to 140 degrees. 

The pre-separation C&P examination documented constant pain rated 8/10 “elicited by physical activity.”  The VA physical examination (recall normal gait) recorded the absence of tenderness or effusion, stability to stress testing in all planes, and negative signs of impingement.  The VA measured ROM (bilateral) was flexion to 140 degrees and normal extension of 0 degrees.  

The Board directed attention to its rating recommendation based on the above evidence.  As above the PEB’s bilateral rating of 0% under code 5024 (tenosynovitis, defaulting to criteria of 5003) does not comport with §4.71a criteria for 5003.  The VA’s separate minimum compensable ratings under the same code invoked painful motion.  There was no compensable ROM impairment, instability, locking, or frequent effusions which would achieve separate ratings higher than 10%.  As above the Board must consider separate ratings with attention to the fitness considerations.  Members agreed, however, under the same rationales as articulated above for the bilateral hip condition, that separate ratings were not justified.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board consensus recommendation is a 10% rating for the bilateral knee condition under code 5024.

Bilateral Foot Condition(s) - Subsuming Achilles Tendonitis.  The STR corroborates an onset of bilateral foot pain in 1995, associated with arch tenderness and treated with arch supports.  The foot pain was not clinically active until the MEB period, and bilateral weight-bearing X-rays yielded no significant findings.  There were no STR entries directed at ankle complaints, although normal bilateral ankle X-rays were obtained during the MEB period.  There were no STR entries indicating significant ROM limitation, joint impingement or instability, significant functional limitations, periods of incapacitation, or other ratable evidence.  

The NARSUM documented a 4-year history of atraumatic bilateral “ankle and foot” pain without further elaboration, although it provides detailed physical examinations.  The PM addendum documented bilateral “ankle and foot” pain rated 6/10 “aggravated with walking, climbing stairs, and standing.”  The consolidated physical examination (recall normal gait) recorded bilateral Achilles and plantar tenderness, but otherwise normal and stable ankle joints and feet.  The NARSUM cited PT ankle ROM measurements of bilateral dorsiflexion to 5 degrees (normal 20) and plantar flexion to 30 degrees left/40 degrees right (normal 45).  The PM addendum recorded “full active and passive” ankle ROM.  

The pre-separation C&P examination documented bilateral Achilles pain intermittently throughout the day rated 5/10 and bilateral plantar pain “constantly” rated 9/10, noting a 15-20 minute tolerance for standing but no requirement for orthotics.  The VA physical examination (recall normal gait) recorded no ankle tenderness and non-specific bilateral foot tenderness; specifying the absence of ankle instability or any podiatric deformity of the feet.  The VA measured ROM (bilateral) was normal, dorsiflexion 20 degrees and plantar flexion 45 degrees; specifying painful motion at the ankles with no painful motion of the feet.

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered whether separate ankle and foot ratings were appropriate in this case (as per the VA decision).  Members agreed, however, that the attendant fitness considerations (as above) did not justify a separate rating for Achilles tendonitis whether unbundled from either the PEB’s consolidation with the knees or from the Board’s approach of subsuming it with the plantar fasciitis.  Other than some Achilles tenderness noted by the NARSUM and PM examiners, there are no pathologic findings or independent functional implications of this condition anywhere in evidence.  Furthermore the ratable findings and disability from the tendonitis, in the Board’s opinion, cannot be separated from those of the fasciitis without violation of VASRD §4.14 (avoidance of pyramiding).  The Board next turned to deliberation of whether separate right and left ratings were justified as with the preceding bilateral conditions.  It is noted that the PEB’s bilateral rating for plantar fasciitis under the muscle disability code 5310 (Group X, movements of forefoot and toes) is not compliant with VASRD §4.55 (principles of combined ratings for muscle injuries) which stipulates that each muscle group must be rated separately; although, the 0% rating for “slight” disability under 5310 would be VASRD compliant if separately applied to each foot.  Members agreed, however, under the same rationales as articulated above for the preceding bilateral conditions, that separate ratings were not justified.  Considering that the Achilles tendonitis is subsumed with the fasciitis in the Board’s recommendation, member consensus was that the condition was appropriately coded analogously to 5024 (tenosynovitis as above); and, that a §4.71a compliant bilateral rating of 10% was fairly recommended under that code.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board consensus recommendation is a 10% rating for the bilateral Achilles tendonitis/plantar fasciitis condition under code 5099-5024.

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, possible PEB reliance on AR 635-40 for rating was operant in this case and it was adjudicated independently of that regulation by the Board.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral hip condition, the Board by a majority vote recommends a disability rating of 10%, coded 5019, IAW VASRD §4.71a.  In the matter of the knee condition, the Board by a majority vote recommends a disability rating of 10%, coded 5024, IAW VASRD §4.71a.  In the matter of the bilateral Achilles tendonitis/plantar fasciitis condition, the Board by a majority vote recommends a disability rating of 10%, coded 5099-5024, IAW VASRD §4.71a.  The minority member submitted the appended minority opinion. 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	
Degenerative Disc Disease, Lumbar Spine	5242	10%	
Bilateral Trochanteric Bursitis 	5019	10%	
Bilateral Patellar Tendonitis	5024	10%	
Bilateral Achilles Tendonitis with Plantar Fasciitis	5099-5024	10%	
RATING 	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140313, 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, AR20160005106 (PD201401302)

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

MINORITY OPINION:

Although in agreement with the majority as regards the lumbar spine recommendation, the minority member disagrees with the majority conclusion that the separate bilateral hip bursitis, patellar tendonitis, Achilles tendonitis, and plantar fasciitis conditions merited separate disability ratings.  They are fairly and more appropriately consolidated as a single unfitting condition, due to combined effect, rated analogously (bearing in mind the absence of X-ray confirmation) under 5003 (degenerative arthritis) at 10% for two or more major joints.

As documented in these proceedings, there were no STR entries indicating gait disturbance, significant ROM limitation, joint impingement or instability, significant functional limitations, periods of incapacitation, or other ratable evidence for each of the orthopedic joint conditions.  There were no STR entries addressing an isolated complaint of hip pain, knee pain, ankle pain or foot pain; rather, all of them were addressed in the context of multiple combined orthopedic complaints.  The minority member is therefore satisfied that there was totally insufficient evidence to support a conclusion that any one of these conditions would have rendered the CI unfit for continued military service; and, that the unfitting limitations were a result of the combined effect from all of them.

The Secretary is respectfully urged to consider the minority recommendation that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease, Lumbar Spine	5242	10%	
Bilateral Trochanteric Bursitis, Patellar Tendonitis, Achilles Tendonitis and Plantar Fasciitis	5099-5003	10%	
RATING 	20%