RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01316
BRANCH OF SERVICE:  Army	BOARD DATE:  20150313
SEPARATION DATE:  20050701

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Military Police) medically separated for chronic low back pain (LBP) and plantar fasciitis.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The LBP and foot conditions, characterized as “herniated disk L4-L5” and “plantar fasciitis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain” and “plantar fasciitis” as unfitting, rated 10% and 0% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Lower back injury required spinal fusion during same fiscal year as separation from active duty.  Tricare referral was approved for surgery, a rating of 40% disability for service-connected disability was awarded by V.A. – No consideration was recommended for bilateral plantar faciitis.  A rating of 10% for service connected disability was awarded by the V.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 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 IPEB – Dated 20050225	VA - (~13 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5243	10%	L4/L5 Intervertebral Disc with L5…	5243	40%	20060802	
Plantar Fasciitis	5399-5310	0%	Plantar Fasciitis, Left Foot	5299-5284	10%	20060802	
Other x 0  (Not in Scope)	Other x 13 	20060802	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20061114 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The CI was first seen for LBP in February 2002 and treated conservatively with duty limitations, bed rest and medications over the next 2 years for recurrent pain.  On 24 June 2004 a CT scan showed degenerative joint disease of the lumbar spine.  He was seen in orthopedics and reported radicular symptoms.  A magnetic resonance imaging on 2 October 2004 showed a degenerative disc disease at L4-5.  At a follow-up orthopedic appointment on 12 October 2004, the gait and neurological examination were normal.  He was referred to pain management for a trial of injections which did not resolve his pain.  The narrative summary (NARSUM) was dated 2 November 2004.  On examination, the gait and posture were normal.  The range-of-motion (ROM) was absent for extension, but otherwise normal.  The sensory examination was normal; no comment was made on the motor examination or reflexes.  Incapacitation was not recorded.  At the MEB examination 3 weeks later, the examiner recorded a reduced ROM, but normal neurological examination.  The VA Compensation and Pension (C&P) examination was performed 13 months after separation and back operation on 7 December 2005, 5 months after separation.  Following surgery, he had continued pain and was placed on additional medications.  On examination, his gait, posture, and neurological examination were normal.  The ROM was reduced and painful.  X-rays showed hardware from the surgery.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~ 8 Mo. Pre-Sep	MEB ~ 7 Mo. Pre-Sep	VA C&P ~ 13 Mo. Post-Sep	
Flexion (90 Normal)	90	90	60	
Combined (240)	210	160	110	
Comment	Limited by discomfort	Nml neurological exam	DeLuca negative	
§4.71a Rating	10%	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10% using code 5243, intervertebral disc syndrome.  The VA used the same code, but rated the back at 40% citing a after separation clinical note, not otherwise in evidence, dated 14 September 2006 in which the flexion was limited to 30 degrees.  It is not clear if the flexion recorded was for the entire thoracolumbar spine.  Significantly, it is after post separation surgery and outside the 12 months after separation window that is normally assigned higher probative value.  The two ROM examinations prior to separation both support the 10% rating adjudicated by the PEB.  The measurements cited by the VA were both over a year after separation and also after separation surgery, reducing their probative value for determining the disability at separation.  The Board noted that the neurological examination was normal, when recorded, and the evidence does not support the presence of an unfitting neuropathy at separation.  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 back pain condition.

Plantar Fasciitis.  The CI presented with left heel pain on 23 April 2004 and was diagnosed with left plantar fasciitis.  Weight bearing X-rays were normal.  Despite treatment with duty limitations, medications, and orthotics, his pain continued.  A bone scan on 9 September 2004 was positive for increased uptake in the heel bone (calcaneus).  He then underwent an injection which was also unsuccessful.  The NARSUM noted that the CI had bilateral heel pain.  In fact the treatment notes are solely for the left heel.  Examination of the feet and ankles was unremarkable and the gait was normal and pain free.  The ROM of the ankle was normal.  At the MEB examination, the left heel was more tender than the right.  No other pathology was documented.  At the VA C&P examination, the CI reported bilateral foot pain.  Both feet were tender to deep palpation, but not to manipulation.  The gait was normal.  X-rays were normal.  The ROM of the ankles was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated plantar fasciitis at 0% using the analogous code 5399-5310 (muscle dysfunction of the foot and forefoot).  Neither the PEB nor the MEB specified if this was bilateral or limited to the left foot, but the NARSUM recorded bilateral foot pain suggesting that the rating might have been for a bilateral condition.  The VA rated the left foot for plantar fasciitis at 10% using the analogous code 5299-5284 (foot injuries).  The right foot was not rated.

The Board first considered if each foot was separately unfitting.  The treatment records consistently specify the left foot.  Bilateral foot pain is not documented until the CI was in the MEB process and even after that the treatment notes address only the left foot.  The fitness determination was subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance until Referral).  This stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  While the right heel was tender on the MEB examination, it was less tender than the left and, regardless, the gait was normal.  Even if the right heel were found to be separately unfitting, the evidence would not support a compensable rating above 0%, thereby providing no benefit to the CI.  The Board then considered the left heel.  Plantar fasciitis refractory to treatment was documented in the service treatment record.  While the CI was tender to palpation on multiple examinations, the gait was consistently noted as normal and the examination of the foot and ankle otherwise unremarkable.  This implies a slight rather than moderate disability and a rating higher than the 0% assigned by the PEB is not supported using either coding option.  The 5284 code used by VA was thought to provide a more VASRD compliant and appropriate description of the disability, but offered no rating advantage to the CI.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the plantar fasciitis condition.

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 LBP and plantar fasciitis condition and IAW VASRD §4.71a and §4.73, the Board unanimously recommends no change in the PEB adjudication.  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 20140312, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013438 (PD201401316)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		XXXXXXXXXXXXXXX
		Deputy Assistant Secretary of the Army
		    (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA