RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02295
BRANCH OF SERVICE:  Army	BOARD DATE:  20150514
SEPARATION DATE:  20051001

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Food Service Specialist, medically separated for bilateral foot conditions.  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 issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Pes planus and chronic foot pain were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded genu valgum deformity of the lower extremities as medically acceptable.  The Informal PEB adjudicated chronic foot pain, secondary to pes planus and genu valgum as unfitting, rated 0% with likely application of 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 condition 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 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 20050825	VA* - (~6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Foot Pain [Bilateral], Secondary to Pes Planus and Genu Valgum	5299-5276	0%	Plantar Fasciitis with Mild Chronic Strain, Bilateral	5099-5020	0%	20060320	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2 (Not In Scope)	
RATING:  0%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20060526 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  

Chronic Foot Pain.  The MEB narrative summary (NARSUM) noted the CI had bilateral foot pain for “nearly his entire military career.”  Notes in the service treatment (STR) record indicated that the CI initially presented with left ankle pain.  Left ankle X-rays noted bony densities of the inner left ankle, thought to be old chip fractures and X-rays of the foot noted no pertinent abnormalities.  At an evaluation by a podiatrist on 2 June 2003, the CI reported a history of an ankle injury in November 2002, with subsequent recurrent ankle sprains.  He reported pain was aggravated by walking or prolonged standing and improved by rest or removal of his shoe gear.  The exam noted painful motion of the ankle pain of the outside of the ankle with range-of-motion (ROM) and pain of the bottom of the foot and the assessment was left ankle pain and plantar fasciitis.  The CI was given shoe inserts and a P2 profile.  He was subsequently deployed and following his return reported increased left foot pain.  A podiatry re-evaluation on 7 June 2004 noted left ankle pain with palpation and ROM and recommended a MEB or a reclassification.  At the next podiatry visit on 28 September 2004 the CI reported right ankle pain for 2 years.  The exam noted full strength and ROM of the both ankles and recommended a MEB.  At a primary care (PC) evaluation on 15 March 2005 normal arches were noted and there was tenderness of the bottom of the first metatarsals of both feet, with normal painless motion.  The examiner diagnosed metatarsalgia and referred the CI for a MEB.  At a PC evaluation, left ankle pain and bilateral foot pain with weight bearing was noted, without leg pain or sensory disturbances.  Normal arches were noted and there was tender to palpation (TTP) of the bottom of both feet.  There was full ROM of both ankles, with painful motion of the left ankle, and no tenderness, painful motion, or deformity of the toes.  The examiner provided a permanent profile for bilateral foot pain and left ankle pain and referred the CI for an MOS Medical Review Board (MMRB).  The MMRB subsequently recommended an MEB.  There were two commander’s statements in record.  The commander’s statement noted the CI was placed on temporary profile for chronic left ankle pain since August 2004 and his condition limited his ability to walk or stand for prolonged periods of time, but noted the CI was able to pass an alternate physical fitness walk event.  The final permanent profile listed left ankle and bilateral foot pain.  A commander’s statement dated 1 August 2005 referenced the final profile and specifically mentioned the left ankle pain, but noted duty limiting restrictions of limited walking and no standing more than 10 minutes.

At the MEB NARSUM examination, 4 months before separation, the CI reported bilateral foot pain, left worse than right.  The physical exam noted moderate bilateral genu varum (bow legs) and pes planus.  On exam there was normal gait and stance with [bilateral] full ROM of the ankle and foot, without TTP or painful motion noted.

At the VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported bilateral ankle and foot pain.  The CI was using a topical cream on his feet, was not using orthotics, and could not identify any impairment of daily activities.  The exam noted normal posture and gait.  There was full, painless ROM of both knees and ankles.  There was mild crepitus with ROM of the left ankle, normal ROM of the foot, and mild TTP of the soles of both feet.  Neurologic exam was normal.  Bilateral foot and ankle X-rays were normal.

The PEB combined the left foot and right foot conditions as a single unfitting condition rated as 5299-5276 (Analogous to acquired flatfoot) at 0%.  The PEB adjudication in this case appears to be VASRD compliant rated as a bilateral condition as per the 5276 rating criteria.  However, the Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD rating guidelines.  If the Board judges that two or more separate ratings are warranted in such cases, it must satisfy the requirement that each “unbundled” condition is reasonably justified as separately unfitting in and of it.  Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.  The Board initially addressed the left foot and ankle pain to determine if the evidence in record supported them as separately unfitting conditions of the left lower extremity.  Notes in the STR addressed left ankle pain; however, both the MEB NARSUM and C&P exams cited full painless ROM of both ankles.  Members readily agreed that the residual disability of the left ankle condition was due to pain with weight bearing activities without other impairment identified.  Consequently, the Board determined that pain in the left ankle and foot could not be separated into individual ratings for pain IAW §4.14 (avoidance of pyramiding).  The Board consensus concluded that the CI’s left and right foot pain was aggravated by weight bearing, worse on the left than the right, and determined that both left and right foot conditions were reasonably justified as separately unfitting and both eligible for a disability rating.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated chronic [bilateral] foot pain 0%, coded 5299-5276 (Analogous to acquired flatfoot).  The VA also rated the bilateral foot condition 0%, coded 5099-5020 (Analogous to synovitis), an analogous code for PF.  The Board noted that the evidence supports that the CI experienced pain on use of the feet, but the MEB exam was normal and the C&P exam noted mild TTP of the bottom of both feet.  The notes in the STR indicate orthotics were tried, but apparently did not sufficiently improve the pain.  

The Board first considered the two foot conditions as a bilateral condition and agreed that a 10% rating was achieved coded as 5276, 5279 (Metatarsalgia), or as 5299-5020, all of which achieve a 10% rating.  The Board next considered if the left and right conditions met a higher evaluation rated individually with an alternative coding approach IAW §4.71a.  There was no higher evaluation achieved rating with an ankle code as the MEB and C&P exams both noted a normal gait and full, painless ankle ROM.  There were no occasional incapacitating episodes documented in record for 20% rating according to 5003 rating criteria which are applicable to the 5020 code, and there was no evidence to support a 20% rating coded as 5284 (Other foot injury) that could be described as moderately severe.  Additionally, there was no evidence of severe unilateral or bilateral flat foot, ankyloses or ankle deformity; claw foot, metatarsal or tarsal bone nonunion or malunion for a higher evaluation.  

The Board finally considered if rating alternatively IAW §4.73 (Muscle injury) analogous to 5399-5310 (Group X function) provided a higher combined evaluation or for either foot individually.  Members considered the mild exam findings at the MEB and C&P examinations and noted the observation that the symptoms were aggravated by weight bearing, worse on the left than the right, and were improved by removal of military foot wear and concluded the symptoms were reasonably anticipated to provide minimal disability after separation in civilian circumstances.  Therefore, the Board judged that the worse left symptoms (which included pain from the foot and ankle) could be described a `moderate’ for 10% rating, but the lesser right symptoms were best described as `slight’ for 0% rating and resulted in 10% combined rating for the foot conditions coded individually as 5399-5310.  Thus, although the Board unbundled the foot conditions and considered individual rating to see if a higher combined evaluation was achieved the Board found that whether coded IAW §4.71a or §4.73, as individual conditions or as a bilateral condition, no higher combined rating than 10% was supported for the left and right foot conditions.  The Board ultimately chose to use the same code as the PEB, 5299-5276, which provides 10% rating for “pain on use or manipulation of the feet” (not relieved by orthotics), whether unilateral or bilateral..  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 10% for the chronic bilateral foot pain 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 chronic foot pain condition, the Board unanimously 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, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic Foot Pain [Bilateral]	5299-5276	10%	
RATING (w/ BLF)	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140515 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 XXXXXXXXXXXXXXXXXXX, AR20150018400 (PD201402295)

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,   I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization 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