RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX  	CASE:  PD-2014-03418
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20080630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Culinary Specialist, medically separated for “status post reconstruction of flat feet bilaterally with normal postoperative course” rated 10% and 10% [10% each foot], with a combined disability rating of 20%.  

CI CONTENTION:  The CI requests that all conditions be considered.  The CI’s complete submission is at Exhibit A.  

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 – 20080421	VARD – 20081208*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post Reconstruction of Flat Feet Bilaterally w/ Normal Postoperative Course	8799-8725	10%
+
10%	Bilateral Pes Planus…	5276	30%	20080826	
			Scars, Right Foot…	7804	10%		
			Scars, Left Foot…	7804	0%		
…Pain of the Tibial Tubercles & Osteoarthritis of the Knees…	Cat III	…DJD, Right Knee	5299-5003	10%		
		…DJD, Left Knee	5003	10%		
Lumbago		Thoracolumbar Strain	5237	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	
*Knee rating deferred until 20090209 VARD (combined 70% rating), rating effective day after separation.  

ANALYSIS SUMMARY:  

Flat Feet Bilaterally.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral flat feet condition began in 2007 following surgeries on both feet to correct bilateral knee pain.  The CI had mild, asymptomatic pes planus documented on his entry physical in February 2003.  The CI’s feet were not symptomatic in service until surgery (calcaneal osteotomy and Achilles tendon lengthening) on the left foot in May 2007 and the right foot in December 2007.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “flatfoot” for PEB adjudication.  

At the MEB examination (recorded on DD Forms 2807 and 2808) and NARSUM dated February 2008, 5 months prior to separation (2 months after right foot surgery), the CI reported continued bilateral foot pain with retained screws in the right foot and continued use of a right foot cast boot.  DD Form 2808 noted symptomatic pes planus with both severe and moderate circled.  Physical examination showed an antalgic gait with the left foot in a cast boot.  Neurologic examination was grossly normal.  The NARSUM diagnosis was “status post reconstruction of flat feet bilaterally with normal postoperative course.”  The non-medical assessment (NMA) dated 14 March 2008, indicated the CI could not stand for prolonged periods.  

The CI had a PEB with a finding of “fit to continue on active duty” dated 28 March 2008 which the CI rebutted.  The submitted podiatry specialist’s note indicated continued post-operative Achilles tendonitis bilaterally with right foot fixation irritation and scheduled screw removal surgery.  The specialist stated that recovery from surgery usually took 6 months and that he did not consider the CI (or any patient) 4 months status/post flat foot reconstruction as fit for full duty.  The CI underwent additional right foot surgery with hardware removal in April 2008 and had subsequent wound dehiscence [post-op skin wound split open].  By August 2008, the right foot wound was healing well with improved foot positioning bilaterally and residual weakness in ankle dorsiflexion which was measured at 15 degrees (normal 20).  

At the VA Compensation and Pension (C&P) examination in August 2008, performed 2 months after separation, the CI reported bilateral moderate to severe foot pain with weakness as soon as he stood up in the morning continuing constantly throughout the day, primarily in the posterior foot and Achilles area.  The CI reported significant fatiguing and lack of endurance.  The CI could walk a maximum of one hour with increasing pain, but limited walking to no more than half an hour whenever possible, and had to take seated breaks about 15 minutes between each hour of working.  Compression hose helped to keep the swelling down, but did not help the pain.  The CI was scheduled to re-start physical therapy with molded orthotics made in the near future, but the CI was concerned as prior orthotics had increased the foot pain.  Physical examination showed an antalgic gait.  Posture was good, stance was normal and the CI could accomplish heel and toe gait briefly, but it caused increased pain in bilateral feet, particularly on the left.  Ankle jerk reflex was absent in both ankles.  The right foot scar was tender.  There was “obvious congenital deformity of pes planus third degree” (pronation with true valgus, rotation is very evident).  There were no lesions or callusing.  Hair growth, color, temperature and integument were normal.  Feet and ankles were non-tender with no swelling or laxity.  Ankle range of motion was plantar flexion to 40 degrees (normal 45) and dorsiflexion to 15 degrees (normal 20) with painful motion bilaterally.  The final assessment was “flat foot reconstruction … preexisting pes planus with severe aggravation after flat foot reconstruction surgery bilaterally.”  Podiatry notes through the year following separation indicated continued treatment of bilateral pes planus, diagnosis of bilateral Achilles tendonitis and with consideration of further surgery.  Remote from separation the VA also awarded 10% ratings for left and right Achilles tendonitis effective October 2009.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 8725 code (neuralgia of posterior tibial nerve), for each leg (combined 20%).  The VA assigned a 30% rating using the 5276 code (flatfoot, acquired) based on the VA C&P examination 2 months after separation, citing severe aggravation of bilateral pes planus after surgery and stating the 30% criteria under code 5276.  

The Board considered that the VA examination had the highest probative value for rating at separation as the service examinations indicated the CI was still in a cast boot and examinations were prior to additional pre-separation right foot surgery.  The Board deliberated if the CI’s disability picture more nearly represented the “severe” criteria for pes planus than the “moderate” criteria.  The pertinent criteria under code 5276 are:  

Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet.  

Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  

The VA examiner’s indication of third degree pes planus indicated likely marked deformity and weight-bearing line over or medial to great toe, inward bowing of the tendo achillis; however, there were no callosities or pain on manipulation.  The history indicated pain on use and swelling on use, without objective evidence on examination.  

The Board considered the CI’s antalgic gait, pain on use, use of compression stockings to decrease swelling, tender right foot scar, and significant fatiguing and lack of endurance indicated an impairment of function that more nearly approximate the 30% criteria under code 5276.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the status post bilateral reconstruction of flat feet condition, coded 5276.  

Contended PEB Conditions:  “Sequela of Prior Osgood-Schlatter Disease with Persistent Pain of the Tibial Tubercles and Osteoarthritis of the Knees” (Bilateral Knees) and “Lumbago” (Back Pain).  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were implicated on the LIMDU or the commander’s NMA statement, although lumbago was forwarded on the MEB (NAVMED 6100/1).  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the status post bilateral reconstruction of flat feet condition, the Board unanimously recommends a disability rating of 30%, coded 5276 IAW VASRD §4.71a.  In the matter of the contended bilateral knee osteoarthritis and lumbago 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Status Post Reconstruction of Flat Feet Bilaterally w/ Normal Postoperative Course	5276	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140502, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX    
	(c) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 22 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 26 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (j) are approved.

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

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

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

     c. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge. 

     d. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge. 

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge. 

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

     h. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

     i. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 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)