RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01985
BRANCH OF SERVICE:  MARINE CORPS 	BOARD DATE:  20150123
SEPARATION DATE:  20051215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Rifleman) medically separated for degenerative disk disease (DDD) thoracic spine, chronic plantar fasciitis (PF), and lumbago.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “degeneration of thoracic or thoracolumbar intervertebral disc,” “plantar fascial fibromatosis,” and “lumbago” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “degenerative disk disease thoracic spine, chronic plantar fasciitis, and lumbago” as unfitting, rated 0% for overall effect (OE), with likely application of the Department of Defense Instruction (DoDI) 1332.38 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  “Please consider all conditions”  

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:  

IPEB – Dated 20051025	VA* - (~1 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disk Disease Thoracic Spine 	Combined Effect of All	0%	Strain w/Degenerative Changes on MRI, Thoracolumbar Spine (also claimed radiculopathy right and left lower extremity)	5242	20%	20051107	
Lumbago							
Chronic Plantar Fasciitis			Hallux Valgus, Plantar Fasciitis & Pes Planus by exam, Left Foot	5276-5284	10%	20051107	
			Plantar Fasciitis, Pes Planus by exam, Right Foot	5276-5284	10%	20051107	
Other x 0 (Not In Scope)	Other x 4 	
RATING:  0%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 2060505 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  The PEB combined the thoracic spine DDD, chronic PF, and lumbago (low back pain [LBP]), and provided a single service disability rating for OE as permitted by DoDI 1332.38 (E3.P3.4.4).  This approach by the PEB reflects its judgment that the constellation of conditions was unfitting, but that each condition was not individually unfitting.  Since this is an intrinsic service prerogative outside the scope of the VASRD, the Board does not recommend separate codes and ratings in this circumstance unless members agree that one or more conditions were separately unfitting independently of OE.  In support of a recommendation for two or more separate service ratings derived from a PEB overall effect adjudication, members must be satisfied, that each condition recommended for separate rating would have independently rendered the CI unfit for continued military service based on a preponderance of the evidence.  The Board’s initial charge was therefore directed at determining if the PEB’s single OE rating was justified in lieu of separate unfit determinations and ratings.  To that end, the evidence for the thoracic spine DDD/LBP and chronic PF conditions are presented separately; with attendant recommendations regarding fitness, and separate rating if indicated.

Degenerative Disk Disease Thoracic Spine/Lumbago Condition.  The narrative summary (NARSUM) noted the CI developed mild to moderate LBP while deployed.  Following return from deployment, the CI injured his back further while performing a high dive and was felt to have an axial compression injury of the thoracic spine.  Lumbar and thoracic spine films in December 2004 were normal.  A chiropractic evaluation performed 17 December 2004 for the reported back and feet pain, noted thoracic spine tenderness to palpation (TTP), no abnormalities of the lumbar spine, and tight leg muscles, with plantar fascia pain with toe dorsiflexion; the assessment was thoracic strain and PF.  On magnetic resonance imaging (MRI) 12 September 2005, the lumbar spine was normal and thoracic spine noted DDD and spinal arthritis, without spinal stenosis or nerve impingement.  According to the NARSUM, despite treatment including chiropractic treatment, physical therapy and appropriate duty modifications, the CI had minimal improvement in his back pain and was unable to return to full duty.  The non-medical assessment (NMA) dated 3 October 2005 noted the CI was working out of his specialty and injuries to the CI’s “legs and back are causing severe pain.”  At the MEB examination 20 September 2005, 3 months before separation, the CI reported thoracic and LBP rated 3-4/10 that radiated to both legs, without numbness, weakness, or other neurological symptoms.  The MEB physical exam noted TTP of the thoracic and lumbar spine areas.  Thoracolumbar (TL) range-of-motion (ROM) was flexion of 40 degrees (normal 90 degrees) with combined ROM of 185 degrees (normal 240 degrees).  Lower extremity strength, sensation, and reflexes were normal.

At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported constant mid and lower back pain without radiation, rated 5/10, relieved by over the counter medications and rest.  The examiner noted there had been no periods of physician prescribed bed rest.  There was TTP of the lumbar spine without muscle spasm or abnormal spinal contour.  TL ROM was flexion of 40 degrees and combined ROM of 165 degrees, with painful motion.  Strength, sensation, and reflexes were normal.  The examiner commented that “there is no evidence of intervertebral disc syndrome with chronic and permanent nerve root involvement.”  

The Board first deliberated whether a preponderance of the evidence supported the back condition as unfitting for continued military service in itself.  Notes in the STR indicated the CI was given light duty for the back and the NMA implicated the back condition.  At the MEB examination the CI reported back pain that radiated into the legs with ROM and the exam noted decreased TL ROM.  Member consensus was that a preponderance of the evidence supported that the back condition impaired duty performance at the time of separation and was unfitting and a separate disability rating is recommended.

The Board directed its attention to its rating recommendation of the back condition based on the above evidence.  The PEB rated the thoracic DDD and LBP combined with other conditions for OE as previously noted and rated 0%.  The VA rated the TL spine condition 20%, coded 5242 (spinal arthritis).  According to the VASRD rules for rating the spine in effect at the time of separation thoracic and lumbar spine conditions coded IAW §4.71a are provided a single disability rating and thus the thoracic DDD and the lumbago (listed by the PEB as separate conditions) are subsumed in the §4.71a rating that follows.  The Board agreed that the TL spine condition met the 20% rating for ROM of flexion of greater than 30 degrees and not greater than 60 degrees, but did not meet the 40% evaluation specified as TL flexion of less than 30 degrees.  There was no evidence of incapacitating episodes (defined by the VASRD to require periods of physician prescribed bed rest) or evidence of peripheral nerve impairment to provide for higher or additional rating.   The Board agreed that coding with either 5242 as the VA did or as 5243 (intervertebral disc syndrome) are equally medically appropriate in this case and chose to code as 5243-5242.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the back condition.  

Chronic Plantar Fasciitis Condition.  The NARSUM noted that the CI developed bilateral foot pain while deployed, which worsened following his return from deployment aggravated by routine military weight bearing activities, such as hiking and heavy lifting.  Notes in the STR indicated that the CI reported bilateral foot pain and was diagnosed with PF and pes planus by the podiatrist.  At follow-up evaluation on 8 April 2005, the CI reported that left foot symptoms had increased despite light duty.  On examination the left ankle was noted to be swollen and there was TTP of the outside of the ankle and the bottom of the foot and light duty was extended.  Bilateral foot X-rays 3 March 2005 were normal.  The CI’s left foot was casted for tendonitis and fasciitis and at the visit to remove the cast 12 May 2005 he reported pain of the left ankle was improved while casted but persisted when the cast was removed and right foot pain had increased since the placement of the cast.  Bone scan 12 May 2005 noted increased activity of the left ankle interpreted by the podiatrist as arthritis and an MRI 31 May 2005 noted some fluid representing possible mild inflammation of a tendon sheath (tenosynovitis).  Straight leg raise testing reproduced the pain in the legs and heels and the podiatrist questioned whether there was possibly radicular pain due to the back condition and referred the CI for evaluation.  The CI had an injection of the left ankle joint by podiatry 21 July 2005 which provided only temporary improvement.  At the final podiatry visit in record dated 23 August 2005, 4 months before separation, the CI reported continued bilateral foot pain.  Examination noted antalgic gait and bilateral TTP of anterior and posterior ankle and PF, bilateral pes planus, and decreased foot dorsiflexion bilaterally.  The podiatrist noted that orthotics were of minimal help and despite all interventions bilateral foot pain remained, greater on the left than the right, and that pending the outcome of the MRI of the back [regarding any contribution to foot pain from lumbar radiculopathy] a PEB should be considered because there were no further treatment options.  As noted in the back condition discussion, MRI of the lumbar spine was normal.  According to the NARSUM, despite treatment and appropriate limited duty the CI was unable to return to full duty.  As noted above, the NMA implicated both legs as impairing duty performance.

At the MEB examination, 20 September 2005, 3 months prior to separation, the CI reported bilateral foot pain.  The MEB physical exam of the bilateral feet noted normal foot arches, with TTP of the medial arch, left worse than right, decreased foot dorsiflexion, and a limp in bare feet due to pain.  Mild pain was noted bilaterally over ankle tendons.  There was no laxity of either ankle joint.

At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported bilateral PF and the VA examiner noted, “Currently, he uses shoe inserts and he takes…over the counter analgesics to relieve the pain.”  On examination “a slightly limping gait” was noted.  There was no swelling or painful motion of the feet and there was no evidence of abnormal weight bearing, such as callosities.  There was TTP of the bilateral PF, with normal alignment of the Achilles tendons (AT), with TTP of the left AT.  The examiner noted bilateral flat feet and mild pronation, without evidence of valgus deformity, malalignment of the foot, claw foot, drop foot, metatarsalgia, or hammertoes.  There was mild hallux valgus on the left (15°).  Radiographs of the left ankle, tibia and fibula, bilateral feet (weight bearing and non-weight bearing) were normal, with no evidence of pes planus of either foot. 

The Board first deliberated whether a preponderance of the evidence supported the chronic PF condition as unfitting for continued military service in itself.  Notes in the STR indicated the CI was placed on a 6-month LIMDU for the bilateral foot pain in effect during the MEB process; the podiatrist recommended that a PEB be considered; and, the NMA implicated the leg conditions.  At the MEB examination the CI reported bilateral foot pain and exam noted limping due to foot pain.  Member consensus was that a preponderance of the evidence supported that the chronic PF condition impaired duty performance at the time of separation and was unfitting for continued military service and separate disability rating are recommended.  

The Board next considered if the PEB adjudication of the right and left PF conditions as a single condition was appropriate or if each condition remained reasonably justified as unfitting when unbundled and thus eligible for individual rating.  Both feet were addressed throughout the treatment records, although the majority of treatment was targeted to the left foot.  However, both feet were implicated by the NMA and both were noted on the LIMDU.  Since the disability due only to the left foot cannot be isolated by the clinical evidence or from the fitness implications of the bilateral condition, the Board consensus was that both the left and right foot conditions impaired duty performance and were reasonably justified as separately unfitting and eligible for service disability rating.  

The Board next directed its attention to its rating recommendation of the left and right foot conditions based on the above evidence.  The PEB rated the chronic PF condition combined with other conditions for OE as noted above and rated 0%.  The VA rated the left and right foot conditions 10% each, both coded 5276-5284 (acquired flatfoot with other foot injuries) and also provided a 10% rating of the left ankle, coded 5271 (limited ankle motion).  The Board noted that the VA rated the left ankle as well as the left foot for painful limited motion.  However, a discrete left ankle condition was not identified by the MEB or the PEB and was not in the scope of the Board.  Additionally, the bilateral findings of tenderness of the soles of the feet and tendons about the ankles could reasonably account for decreased dorsiflexion of both feet and the Board concluded that only one rating for the left foot pain with non-compensable limitation of ROM could be provided IAW §4.14 (Avoidance of pyramiding).  The evidence in record as noted above supported that the disability due to the left foot condition was greater than the right.  After deliberations, the Board consensus was that the PF conditions were appropriately coded 5299-5276 (analogous to acquired flat foot) as a bilateral condition and rated 10%, based upon criteria of pain on use or manipulation of the feet, without swelling on use or characteristic callosities not relieved by arch supports, whether unilateral or bilateral.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the bilateral foot condition, coded 5299-5276.

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 DoDI 1332.38 for rating the back and bilateral foot conditions was operant in this case and the conditions were adjudicated independently of that instruction by this Board.  In the matter of the thoracic spine DDD condition, the Board unanimously recommends a disability rating of 20%, coded 5243-5242 IAW VASRD §4.71a.  In the matter of the bilateral foot condition, the Board by a majority vote recommends a disability rating of 10%, coded 5299-5276 IAW VASRD §4.71a.  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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Thoracic Spine Degenerative Disc Disease Condition	5243-5242	20%	
Bilateral Chronic Plantar Fasciitis Condition	5299-5276	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140505, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

	XXXXXXXXXXXXXXXXXX
	President
	DoD Physical Disability Board of Review

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: 	(a) DoDI 6040.44
(b) PDBR ltr dtd 15 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 9 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 29 May 15 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a.	XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.
b. XXXXXXXXXXXXXXXXXXXX, former USMC:  Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 0 percent) effective date of discharge.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effective date of discharge. 

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)