RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02438
BRANCH OF SERVICE:  Army  	 separation DATE:  20030930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-5, Motor Transport Operator, medically separated for “chronic low back pain” and “bilateral foot pain” rated 0% and non-compensable (existed prior to service with no service aggravation) respectively, for a combined disability rating of 0%.

CI CONTENTION:  “All conditions.” 

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 20030812	VARD – NO EVIDENCE IN RECORD	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	0%					
Bilateral Foot Pain	5299-5276	---%					
Bilateral Pes Planus	Not Unfitting					
Bilateral High Frequency Sensorineural Hearing Loss	Not Unfitting					
Adjustment Disorder with Depressed Mood	Not Unfitting					
Gastroesophageal Reflux Disease	Not Unfitting					
COMBINED RATING:  0%	COMBINED RATING FOR ALL VA CONDITIONS:  N/A	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The rather sparse service treatment record (STR) supplemented and substantiated the Medical Evaluation Board (MEB) narrative summary (NARSUM) dated 18 April 2003, which indicated the CI had a long history of back pain as early as 1998 with a persistent complaint of mild right lower extremity radicular pain.  A note dated 2 July 2002 revealed the CI had an onset of low back pain for 4 days, which was exacerbated while in the field.  Treatment consisted of ice, a profile, Flexeril (cyclobenzaprine, a muscle relaxer) and Feldene (piroxicam nonsteroidal anti-inflammatory drug [NSAID]).  On 25 November 2002 the CI was evaluated for upper and lower extremity right side weakness at which time he noted low back pain.  Subsequent neurologic evaluation suggested a somatoform disorder.  He had no history of injury to the back and denied any history of bowel or bladder dysfunction.  Treatment by physical therapy beginning in August 2002 through January 2003 along with NSAIDs and muscle relaxants brought relief of his symptoms.  However, he was unable to perform his duties as a truck driver due to his back pain as well other complaints.  Examination revealed the spine was in line without step-off or deviation.  There was tenderness to palpation in the lower lumbar and sacroiliac joint areas, right greater than left.  There was negative straight leg raise testing (to determine nerve root irritation).  Neurologic evaluation was unremarkable.  Lumbar spine X-rays showed decreased disc height at L5-S1.  A lumbar spine imaging showed a desiccated disc at L5-S1 level without evidence of disc herniation, neural impingement or stenosis.  

He continued to have low back pain that he rated as 7/10 (10 being the worst pain) with worsening to 10/10 with prolonged sitting, bending and lifting, and with driving military vehicles without good seating that provided back support.  Over time he had limited relief with medication and no improvement with rest or physical therapy; there were no surgical indications for the lower back pain.  He continued to experience pain in his lower back, which at times incapacitated him, and he was placed on quarters several times and he was unable to complete his military duties based on his medical condition.  A permanent L3 profile for low back pain was issued on 14 January 2003 with limitations of no bending or stooping, no 2-mile run, and no lifting greater than 20 pounds.  The commander’s statement dated 4 February 2003 indicated the CI fell on 29 June 2002 and slammed his back against a flatbed trailer and landed with his back on a bale of sandbags.  The MEB examiner noted on DD Form 2808 dated 11 February 2003 the spine was in line without stepoff or deviation and there was tenderness to palpation of the lower lumbar spine and sacroiliac joint, right greater than the left.  

No VA Compensation and Pension (C&P) examination or a VA Rating of Disability (VARD) proximate to separation was available for review.  

The Board directed its attention to its rating recommendation based on the above evidence.    The PEB assigned a 0% rating using code 5299-5295 (lumbosacral strain) for chronic low back pain.  The Board sought a route to a higher rating.  While the examinations available for review were quite limited in details normally used for rating purposes including, but not limited to, range of motion (ROM) measurements and notation of spasm or spine abnormalities, and the absence of a VA C&P examination with which to compare or use, the Board discussed whether the CI’s increased pain on bending or lifting would be sufficient as evidence to warrant a 10% rating.   In the absence of precise ROM measurements, the Board members discussed the use of code 5099-5003 (degenerative arthritis), which can be used for a noncompensable ROM and painful motion, documented by functional loss IAW VASRD §4.40.  However, there was no evidence of muscle spasm to support a 20% rating or any evidence of ankylosis, limited ROM measurements, or a precise number of incapacitating episodes over a specific time interval to support a higher rating, although there were references to “incapacitated at times” and quarters “several times.”  The Board then considered whether an additional Service rating could be recommended under a peripheral nerve code.  There was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.

Bilateral Foot Pain.  The CI presented with a painful right foot for over a year.  He noted no history of injury and had daily pain.  He was unable to walk barefoot because it felt like he was walking on a rock.  He noted the pain was sharp in nature and failed to improve with all conservative modalities.  He had surgery on the right foot 4 months prior to the NARSUM preparation and noted some relief; however, his left foot, which started to hurt and became considerably more painful.  Examination of the right foot revealed tenderness to palpation over the surgical site of the 5th distal metatarsal from a prior neurectomy and he had a mild diffuse, hyperkeratotic lesion about the 5th metatarsal head on the plantar surface, which was tender to palpation.  On the left foot there was tenderness to palpation in the midline along the plantar fascia where there was large nodule in the mid arch, which was multilobulated (many parts) with a very firm, hard mass that was painful with pressure.  X-rays were within normal limits with no osseous pathology.  However, the NARSUM noted bilateral foot weight-bearing X-rays showed pes planus deformity (see below) with inferior calcaneal heel spurs and extensive ossification along the plantar fascia of the right foot.  On standing, the CI had an abducted foot positon bilaterally.  An assessment dated 1 April 2003 indicated the CI was status post a right plantar 5th digital neurectomy (surgical removal of all or part of a nerve) and he had left plantar fibromatosis (fibrous nodules) and bilateral pes planus deformities (see below) with secondary metatarsalgia (forefoot pain), which was aggravated by his low back pain.  The CI continued to have bilateral foot pain of 5/10 and no improvement with conservative treatment, although he had limited improvement after surgery on his right foot, but no further surgical intervention was recommended.  The NARSUM did, however, indicate the CI continued to have bilateral foot pain especially with military duties and activities and noted he could not perform the duties of his MOS or duties of a soldier and could not run, jump or march.  His back (see above) and foot pain prevented him from climbing in and out of military vehicles; and he could not drive for any period of time as required by his military duties.

At the MEB examination, annotations on DD Form 2807-1 dated 11 February 2003 included “(R) foot pain--neuroma removed Sep ’02—continued pain” and “(L) foot pain—with fibroma—pending Pod (podiatry) F/U (follow-up).”  The MEB physical examiner noted on DD Form 2808 there was tenderness to pressure over the surgical site of the 5th distal metatarsal and there was tenderness to pressure of the midline plantar fascia of the left foot.  A normal arch of the feet was circled on the form. In the summary of defects and diagnoses a right digital neurectomy and left plantar fibroma as well as bilateral pes planus (see below), which was noted to be not disqualifying were recorded.  No profile specifically for the right foot, the left foot, or the both feet was located in the STR; and the commander’s statement was silent about any issues related to the CI’s right foot, although he noted left foot pain shot to the back at the time of his original back injury.

No VA Compensation and Pension (C&P) examination or a VA Rating of Disability (VARD) proximate to separation was available for review.  The CI was seen in the podiatry clinic on 12 November 2004, approximately 13 months after separation, for follow-up of a mass, which was removed from the right foot on 28 October 2004.  The diagnosis of an infected right foot wound site was made and treatment was with Keflex (cephalexin, an antibiotic), crutches, and elevation of the right foot.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the right foot and left foot conditions under a single EPTS Service disability rating coded 5299-5276.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003 or 5276, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single Service disability rating must be reasonably justified as separately unfitting in order to remain eligible for Service rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  The evidence for each condition was presented separately.  If Board members determine by performance based fitness criteria that each condition is reasonably justified as separately unfitting and is separately ratable; IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended.  IAW DoDI 6040.44 the combined rating for the conditions determined to be separately unfitting and ratable may not be lower than the single Service disability rating from the PEB.  

The Board first considered whether the right foot was reasonably justified as separately unfitting.  Although the details related to symptoms and functionality of the right foot were very limited both pre- and post-operatively and neither the profile nor the commander’s statement provided any additional evidence, the Board members noted that the PEB’s characterization of the condition as EPTS presumably related to the pes planus rather than the right foot status post neurectomy symptoms or the left foot condition, neither of which were explicitly mentioned in the STR to have been EPTS conditions.  The Board then considered whether the left foot was reasonably justified as separately unfitting.  The details related to symptoms and functionality of the left foot were likewise very limited with no explicit mention in either the profile or commander’s statement.  Members agreed that there was insufficient evidence to support findings that each foot had the functional limitations that could be considered separately unfitting; however, because of the postoperative pain of the right foot and the plantar fibroma of the left foot, secondary metatarsalgia (see above) was a reasonable diagnosis that incorporates the conditions of both feet and could reasonably support a functional limitation in a service member with physical training running requirements.  Furthermore, use of analogous code 5279 (Metatarsalgia) offers a rating of 10% for either unilateral or bilateral disability and its use would overcome undue speculation whether one foot’s performance limitation was more attributable than the other.  The Board was unable to find a route to a higher rating than 10% in the absence of pronounced or severe flatfoot, claw foot, tarsal or metatarsal bones malunion or nonunion, or foot injuries.  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 bilateral foot pain condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral pes planus, bilateral high frequency sensorineural hearing loss, adjustment disorder with depressed mood, and gastroesophageal reflux disease 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.  The bilateral pes planus, bilateral high frequency sensorineural hearing loss, adjustment disorder with depressed mood, and gastroesophageal reflux disease conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  

Bilateral Pes Planus.  Bilateral foot weight-bearing X-rays showed pes planus deformity; however, at the MEB examination normal arch was circled, but pes planus was not.  Furthermore, the STR was silent on whether the CI specifically sought or received treatment for the bilateral pes planus independent of the right and left foot conditions noted above.

Bilateral High Frequency Sensorineural Hearing Loss.  A consultation dated 13 March 2003 indicated the CI was referred for decreased hearing.  A hearing test baseline in October 2001 showed normal hearing up to 3000 Hz with losses at 4000 Hz of 35 dB (decibels) and at 6000 Hz of 65 dB on the left and losses at 4000 Hz of 45 dB and at 6000 Hz of 90 dB on the right.  In March 2003 his audiogram showed a roughly 10 dB decrease in the right ear across the frequencies and at 4000 Hz he had a loss of 55 dB and at 4000 Hz his loss was 70 dB.  His left ear showed similar results with a 10 dB loss in the lower frequencies and the higher frequencies were essentially the same as the prior hearing test.  His hearing loss met qualifications for an H2 hearing profile and the tinnitus, of which he also complained, was the result of his high frequency sensorineural hearing loss and was benign.  As part of the H2 profile, the requirements of hearing protection in noise-induced environments and an annual hearing test were reviewed.    

Adjustment Disorder with Depressed Mood.  The NARSUM indicated the CI had an adjustment disorder with a depressed mood with a good response to Wellbutrin and referred to an evaluation by psychiatry, which is not in the STR.  The CI did check off depression or excessive worry on his MEB DD Form 2807-1 dated 11 February 2003 without further details, other than the notation that a behavioral health evaluation follow-up was pending.  The record was silent on any mental health condition, screening or treatment until 14 November 2012, which was 9 years post separation and had little or no probative value for determination of the CI’s status prior to separation or 12 months post-separation.

Gastroesophageal Reflux Disease (GERD).  The NARSUM indicated the GERD was controlled with medication.  No further mention of the condition was found in the STR, and GERD was not mentioned again until 2013 when the CI applied for VA benefits.

The aforementioned was reviewed and considered by the Board.   There was no performance based evidence from the record that any of the conditions 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 fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the bilateral foot pain condition, the Board unanimously recommends a disability rating of 10%, coded 5279 IAW VASRD §4.71a.  In the matter of the contended bilateral pes planus, bilateral high frequency sensorineural hearing loss, adjustment disorder with depressed mood, and gastroesophageal reflux disease 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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain 	5099-5003	10%	
Bilateral Foot Pain	5279	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140520, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM   FOR Commander

SUBJECT:   Department  of Defense  Physical  Disability  Board of Review  Recommendation for XXXXXXXXXX,  AR20160007494   (PD201402438)

1.	I have reviewed  the enclosed  Department  of Defense  Physical  Disability  Board of Review  (000 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 20% 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