RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02700
BRANCH OF SERVICE: Army 	BOARD DATE:  20150603
SEPARATION DATE:  20061216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4 (Fire Control Specialist) medically separated for chronic bilateral foot pain.  The feet condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3S1 profile and referred for a Medical Evaluation Board (MEB).  The “plantar fasciitis bilateral feet,” “pes planus bilateral feet,” and equinus deformity bilateral ankles” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (depressive disorder, NOS) for PEB adjudication.  The Informal PEB combined the foot and ankle conditions adjudicating “chronic bilateral foot pain” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining condition was determined to be not unfitting.  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 20061023	VA* - (~6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Foot Pain	5399-5310	0%	Bilateral Pes Planus w/Plantar Fasciitis	5276	10%	20070519	
Depressive Disorder, NOS	Not Unfitting	PTSD (Claimed as Depressive Disorder)	9411	30%	20070521	
Other x 0 (Not In Scope)	Other x 3	
RATING:  0%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20070816 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The PEB combined the left foot pain and right foot pain conditions as a single unfitting condition rated as 5399-5310 (analogous to muscle Group X injury), an analogous code for plantar fasciitis at 10%.  The PEB relied on AR 635.40 (B.24 f.) and/or the USAPDA pain policy for not applying separately compensable VASRD codes.  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, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself.  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 

Chronic Bilateral Foot Pain.  The narrative summary (NARSUM) noted the CI developed leg tightness and bilateral foot pain while deployed in 2002.  The CI was placed on a no running profile for foot pain and bilateral shin splints.  He was deployed again in 2003 and was moved to a position of full activity and his lower extremity pain increased.  The CI was treated with profiles, medications, physical therapy, injections, and orthotics without relief.  Bilateral lower extremity (LE) X-rays on 23 August 2005 noted stress reactions of the bilateral tibias and weight bearing X-rays of the feet noted bilateral pes planus (flatfoot).  Bone scan noted no evidence of stress fracture, but there was mild, bilateral, symmetrical increased uptake in both lower legs and feet “consistent with overuse syndrome.”  Podiatry evaluation on 7 November 2005 noted recalcitrant plantar fasciitis (PF) with semi-flexible pes planus foot type and persistent pain of the arches and heels of the feet.  On exam there was tenderness of the bottom of both feet with range-of motion of dorsiflexion (DF) 0 degrees and plantar flexion 10 degrees.  The CI declined further treatment with casting and immobilization or surgery and requested an MEB.  

At the MEB examination on 3 May 2006, 7 months before separation, the CI reported lower extremity pain with weight bearing activities.  He reported that he wore shoe inserts.  The MEB physical exam noted normal strength and sensation of the feet and ankles and no redness, swelling or bruising was noted.  There was limited DF of 0 degrees, with pain of the bottom of the foot with DF of the great toe bilaterally.  The MEB NARSUM examiner characterized the CI’s condition as stable, with a good prognosis once the CI was out of the military environment.

At the VA Compensation and Pension (C&P) examination on 19 May 2007, 6 months after separation, the CI reported stable bilateral PF, with right and left foot pain with prolonged walking.  The exam noted a normal gait and no joint swelling, ankyloses, or objective joint abnormalities.  Exam of both feet indicated no abnormal findings, with no evidence of foot or toe deformities or pes planus.  Left and right LE strength, sensation, and reflexes were normal, and there was no muscle spasm or atrophy noted.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated chronic bilateral foot pain 0%, coded 5399-5310 (analogous to muscle Group X injury).  The VA rated the bilateral foot pain 10% coded as 5276 (acquired pes planus).  The Board agreed that the evidence supports a 10% rating coded as 5276 IAW 4.71a as provided by the VA, which provides a single 10% rating for moderate pes planus, whether unilateral or bilateral described as “pain on manipulation and use of the feet”, not relieved by orthotics or special footwear.  However, as noted in the analysis summary, the Board must apply separate ratings if they are achieved according to VASRD rating guidelines.  Thus, the Board attempted to unbundle the right and left foot conditions to see if each condition remained reasonably justified as unfitting when separated from the PEB’s combined adjudication.  Bilateral foot pain was permanently profiled.  The commander’s statement implicated both feet by noting the chronic problem of “chronic foot pain (plantar fasciitis)” and the attendant profile limitations of inability to “run, jump, ruck, or march in formation as impairing the CI’s duty performance.  Members agreed that the functional limitations in evidence justified the conclusion that both the left and right foot conditions were integral to the CI’s inability to perform his MOS Rating; and, accordingly separate ratings are recommended if a higher rating is achieved than the PEB’s adjudication.  The Board also noted that the MEB referred three bilateral foot conditions to the PEB-plantar fasciitis, pes planus, and ankle equinus deformity (limited ankle motion, most often due to tight calf muscles).  The Board consensus was that the evidence supports that the foot conditions were unfitting as a consequence of pain.  There was no evidence in record that the PF, pes planus type foot, or ankle equinus deformities provided impairment other than pain that could be reasonably justified as unfitting and the separate rating of contributing etiologies to the pain would constitute pyramiding under §4.14 (avoidance of pyramiding).  Therefore, the Board deliberated a single condition of each foot and whether individual rating with any applicable code IAW §4.71a provided a higher evaluation of either or both feet.  The Board noted the rating criteria for 5284 (other foot injury), are subjective with a threshold 10% rating for moderate foot injury.  The Board consensus was that the disability of both the left and right foot due to pain was best described as mild and not moderate based upon the normal gait noted post-separation, and therefore did not meet the 10% rating for either foot, resulting in a combined rating of 0%.  

The Board next reviewed to see if rating alternatively IAW §4.73 (muscle injuries) resulted in a higher evaluation.  The Board noted the rating criteria for 5399-5310, an analogous code for PF, are also subjective with a 0% rating for slight and 10% rating for moderate muscle Group X injury.  By the same reasoning noted for code 5284, the consensus was that the disability of both the left and right foot was best described as slight and not moderate, again resulting in a combined rating of 0%.  Thus, having unbundled the foot conditions the Board found that individual rating of the feet did not result in the higher evaluation and the Board concluded that the right and left foot conditions were best rated 10% as a bilateral condition, coded 5276 with consideration of VASRD §4.7 (Higher of two evaluations).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7, the Board recommends a disability rating of 10% for the bilateral foot condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the depressive disorder, NOS was 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.  

There was a single behavioral health (BH) note in the record dated 17 August 2005 that indicated the CI had deployed twice, initially in 2002-2003 and then in 2003-2004.  However, the Psychiatric NARSUM summarized the behavioral health (BH) visits.  The CI was first seen by BH on 19 July 2005 as part of an administrative evaluation for a positive urine drug screen of illicit substances on 13 June 2005.  At the time the CI denied any MH symptoms and desired to remain in the military.  Notes in the record indicated in the Army Substance Abuse Program (ASAP) the CI reported doing well until return from his second deployment in 2004.  He reported being depressed and having trouble with anger, difficulty remembering things, and nightmares every other night.  The MH examiner diagnosed PTSD and prescribed an antidepressant medication and medication for the nightmares.  At a follow-up BH visit on 31 August 2004 the CI reported significant reduction in nightmares and depression.  He reported being anxious about the outcome of the pending Article 15.  The CI reported ongoing irritability without loss of control and noted decreased hypervigilance and startle responses.  At the final BH visit on 26 October 2005 the CI reported he was depressed, but no longer having nightmares, however, was having sleep difficulties and continued hypervigilance.  Medications were adjusted and changed throughout the course of BH visits.  

At the Psych NASRUM examination on 31 January 2006 the CI reported being depressed and anxious, but he had stopped taking his psychotropic medications.  He reported difficulty with anger and sleeping excessively.  He denied any combat-related dreams, but reported strange dreams about fighting people and reported no problems with his unit.  He thought it was time to “move on” and wanted to go to school, but he was not sure about the course of study.  The Psych NARSUM examiner noted that following return from his first deployment the CI did not report any MH issues and redeployed a second time.  There were no issues with his unit noted during the second deployment or problems with his family upon redeployment.  The CI reported problems with being angry and depressed when he was given a desk job following redeployment.  He denied any substance abuse issues.  On mental status examination the CI was noted to be irritable, with a sad affect and depressed mood.  The examination was otherwise normal with normal thought processes and no evidence of cognitive impairment, delusions, hallucinations, or suicidal ideation.  The Axis I diagnosis was depressive disorder, NOS, with a Global Assessment of Functioning of 65 (mild impairment range).  The psychiatrist noted the CI did appear depresses and wrote a prescription for another antidepressant medication.  The psychiatrist’s conclusion was that the CI met retention standards.  Findings of the administrative separation board dated 12 July 2006 recommended separation, unless the CI was medically separated by the PEB.  

The depressive disorder NOS condition was not profiled and was not judged to fail retention standards.  The commander’s statement did not implicate any MH condition.  The commander noted the CI’s performance was limited by his physical profile, and that the CI was not functioning in his primary MOS, but had performed adequately in an alternate MOS as a supply room clerk.  There was no performance based evidence from the record that the depressive disorder, NOS condition 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 depressive disorder, NOS condition and so no additional disability rating is recommended.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military 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 bilateral foot pain condition, the Board unanimously recommends a disability rating of 10%, coded 5276 IAW VASRD §4.71a.  In the matter of the contended depressive disorder, NOS condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 Bilateral Foot Pain Condition 	5299-5276	10%	
COMBINED (w/ BLF)	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140516, 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, AR20160002818 (PD201402700)

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, accept the Board’s recommendation to modify the individual’s disability rating to 10% 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