RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-02948
BRANCH OF SERVICE:  Army	 SEPARATION DATE:  20090213

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Food Services) medically separated for a right foot disability.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “osteoarthritis right foot” condition was forwarded to the Physical Evaluation Board (PEB) as not meeting retention standards IAW AR 40-501.  The MEB also identified and forwarded “pes planus (flat feet)” as meeting retention standards.  The Informal PEB adjudicated “moderate right foot injury” as unfitting, rated 10%, with 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:  The applicant requests consideration of all conditions. His complete submission is at Exhibit 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:  

IPEB - Dated 20090105	VA* - (~2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Moderate R Foot Injury	5284	10%	Tarsal Tunnel Syndrome, R Foot	8520	10%	20081222	
Pes Planus	Not Unfitting	Bilateral Pes Planus	5276	NSC	20081222	
Other Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20090305 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Moderate Right Foot Injury.  The CI was evaluated on 25 October 2007 in primary care for a decrease in sensation in the right foot and pain in the right leg and calf for the previous 5 months.  The symptoms were intermittent and felt like there was a “rock in his boot.”  He was noted to have heel tenderness on the right, but an otherwise unremarkable examination.  He was treated with medications and duty limitations, but his pain persisted.  On 27 November 2007, a bone scan showed trace uptake of the right mid foot and inside ankle bone (medial malleolus), but without evidence of a fracture.  On X-ray a week later, a small plantar spur (of the heel bone, consistent with plantar fasciitis) was noted.  He was referred to podiatry and noted to have congenital flat feet (pes planus) and then issued orthotics.  The spur was confirmed on MRI on 17 January 2008 and a bunion noted (hallux valgus) with arthritic changes.  Plantar fasciitis was not seen.  No comment was made on the presence of a tarsal tunnel compromise (an area of the heel and mid foot transversed by the posterior tibial nerve and some of the plantar [bottom of the foot] nerves).  He was also noted to have plantar fasciitis on a physical therapy examination and treated with both an injection and ultrasound without complete resolution.  He was referred for MEB on 8 May 2008 while he continued treatment.  At the MEB examination on 29 October 2008, just under 4 months prior to separation, the CI reported chronic right foot pain which impaired duty performance.  The examiner recorded tenderness and mild swelling over the 4th right toe.  The neurological examination was noted to be normal.  The narrative summary (NARSUM) was dated the same day.  The examiner recorded that the CI developed pain while doing a 5-mile run in April 2007.  Despite duty restrictions, ultrasound, physical therapy, injections, orthotics, and medications, he was unable to return to full duty.  The CI was interested in cross training.  Surgery was not thought to be a viable option due to multiple areas of arthritis as well as ongoing smoking (which impairs healing and is especially problematic in areas of relatively poor blood flow such as the feet).  He was thought to have both osteoarthritis of the right foot and mild bilateral pes planus.  At the VA Compensation and Pension (C&P) examination performed on 22 December 2008, 7 weeks prior to separation, the CI reported pain and swelling of the right foot with walking.  He noted that his inserts (orthotics) aggravated his flat feet.  On examination, he was noted to favor his right foot with reduced weight bearing.  There was decreased sensation to pin prick on the top and bottom of his feet.  He was noted to have mild pes planus without pronation (rolling foot inwards) and without abnormal weight bearing (over or inside the great toe).  Motion was painful as was heel and toe walking.  He was noted to be symptomatic from the pes planus on the right secondary to the right foot condition and to be asymptomatic on the left.  The CI was diagnosed with tarsal tunnel syndrome.  The Board noted that this had not been previously diagnosed and that the CI had been treated by a podiatrist (foot specialist).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot injury (manifested as osteoarthritis and plantar fasciitis) at 10%, coded 5284 (moderate foot injury).  The VA rated the CI for tarsal tunnel syndrome (claimed as right foot osteoarthritis) at 10%, coded 8520 (incomplete paralysis of the sciatic nerve).  As noted above, this was neither diagnosed prior to the VA examination nor was it seen on MRI.  Not all the physical findings associated with this condition were documented by the VA examiner.  The Board considered the other coding options available for the foot and found no route to a rating higher than the 10% adjudicated by the PEB.  The Board considered if the osteoarthritis and plantar fasciitis conditions could be severed for separate fitness adjudications and additional rating, but noted that the primary duty impairment was limitation in running and military duties secondary to right foot pain without apportionment of the symptoms into separate conditions.  In addition, the common result was right foot pain and assigning separate ratings would violate VASRD §4.14 (avoidance of pyramiding).  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 right foot pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral pes planus condition 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.  The pes planus condition was profiled, but not implicated in the commander’s statement or judged to fail retention standards.  The CI was allowed to take an alternate physical fitness test and allowed unlimited walking.  He was thought by the MEB examiner to be able to function in a civilian environment even though he could not meet military requirements.  The pes planus condition was reviewed and considered by the Board.   There was no performance based evidence from the record that it 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 it and so no additional disability rating is recommended.

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 right foot injury condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended pes planus 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, 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 20140618, 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, AR20160005458  (PD201402948}

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:

Enclosure CF:
(  ) DoD PDBR
(  ) DVA