RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03459
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060111

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Automated Logistical Specialist, medically separated for “chronic bilateral foot pain,” with a disability rating of 0%.

CI CONTENTION:  The CI requests the Board consider all conditions.  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 based upon a 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 - 20051116	VARD - 20060602	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Foot Pain	5399-5310	0%	Bilateral Pes Planus with Bilateral Plantar Fasciitis	5299-5276	0%	STR	
Equinus Deformity, Bilateral Feet	Not Unfitting					
Pes Planus Deformity, Bilateral Feet	Not Unfitting					
Grade I Inversion Ankle Sprain, Right	Not Unfitting	Right Ankle Sprain	5299-5271	NSC	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Bilateral Foot Pain.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented the presence of bilateral pes planus on the service entry physical in 2001.  The CI began complaining of bilateral foot pain in December 2002, and was diagnosed with bilateral fasciitis complicating pes planus (characterized as “severe” and “non-flexible” by podiatry).  Foot X-rays were positive only for bilateral pes planus on weight-bearing views.  A protracted course of conservative treatment included injections, temporary casting and orthotics.  Later podiatry entries noted pain greater on the left with some response to treatment, but no lasting relief.  The CI suffered a strain injury to his right ankle in March 2005, with normal X-rays.  There were several subsequent STR entries that documented bilateral ankle dorsiflexion of 0 degrees (normal 20), with normal (45 degrees) or “nearly so” bilateral plantar flexion.  Subtalar (hindfoot, forefoot, and toes) ROM was described as “adequate.”  There was an early 2003 entry for “slight antalgic gait”, but there were no subsequent STR entries indicating the presence of gait disturbance.  Surgery was not recommended; further treatment measures did not result in sufficient improvement to allow unrestricted duty; and, the CI was referred for an MEB, which in turn forwarded “plantar fasciitis bilaterally” to the PEB.  

The NARSUM examination on 7 September 2005, 4 months before separation, documented “bilateral arch pain ... greater in the right [emphasis added] foot” which was worse in the morning and exacerbated by “prolonged weightbearing activities including standing, walking and running.”  The physical examination recorded “tenderness ... bilateral medial arch ... along the band of the plantar fascia,” subtalar ROM “decreased bilaterally,” and normal strength (5/5 all groups) and sensation.  Measured ROM of the ankles was right dorsiflexion to minus 8 degrees, left dorsiflexion to 0 degrees, and bilateral plantar flexion to 35 degrees.  With regard to right dorsiflexion, it should be noted that the CI was recovering from an injury (as above); and, it should be recalled from the STR evidence that baseline dorsiflexion for both ankles was 0 degrees, presumably on the basis of foot pain and guarding.

The commander’s performance statement did not provide evidence probative to separate fitness implications of either foot, and the profile was for “chronic bilateral foot pain.”  The CI failed to report for a scheduled VA examination.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral foot condition 0% analogously coded 5310, the muscle disability code for Group X (movements of forefoot and toes).  This code is appropriate to plantar fasciitis, but is not compliant with VASRD §4.55 (principles of combined ratings for muscle injuries) which stipulates that each muscle group must be rated separately; although, the PEB’s 0% rating, assigning “slight” disability under 5310, would be VASRD compliant if separately applied to each foot.  The VA, based on the same Service evidence, conferred a bilateral 0% rating analogously to 5276 (pes planus) citing the bilateral criteria of “mild symptoms relieved by built-up shoe or arch support.”  Code 5276 confers a bilateral 10% rating for “moderate ... pain on manipulation and use of the foot.”  

The Board’s initial charge was to determine whether a recommendation for separate ratings for each foot was appropriate.  In that regard, the Board provides the following clarification concerning its approach to PEB consolidated ratings.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting and there was no need for separate fitness adjudications.  Furthermore, bilateral rating is offered under some foot codes, as with the VA’s decision in this case; and, that approach does not necessarily violate the VASRD §4.7 directive to choose the higher of two valid ratings.  When considering a separate rating for each foot, the Board considers each one to be reasonably justified as separately unfitting unless a preponderance of evidence indicates it would not cause the member to be referred into the DES or be found unfit because of physical disability.  

In this case, the plantar fasciitis was treated throughout the course as a combined bilateral condition; e.g., as the working diagnosis, on the profile, and in the MEB’s DA Form 3847 submission.  Although the outpatient STR indicated that the left foot was more symptomatic approaching separation, members agreed that the confusion generated by the NARSUM entry to the contrary (likely attributable to the subsequent right ankle injury) did not permit a firm conclusion that the right foot was not separately unfitting.  Members agreed; however, given the clinical acuity and functional limitations described above, that it was reasonable to conclude that the performance limitations confined to either foot alone would not have rendered the CI incapable of continuing military service; and, that more likely it was the combined effect of the bilateral condition which rendered him unfit.  

Having agreed that separate ratings were not justified, members deliberated the appropriate code and rating as a bilateral condition.  Although it was the pain from the plantar fasciitis, as a complication of pes planus, which rendered the CI unfit; the analogous application of code 5276 (as per the VA) was a reasonable rating option in this case.  Members agreed that the “severe” disability required for a 30% rating under 5276 was not justified, and deliberated whether a 0% (“mild” as above) or 10% (“moderate” as above) rating was more appropriately recommended.  Given the functional limitations in evidence (which included prolonged standing and walking, posing some occupational constraints), members concluded that the evidence was better aligned with the 10% criteria than with those for 0%.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the bilateral plantar fasciitis condition under code 5299-5276.

Contended PEB Conditions.  The Board’s main charge was to assess the fairness of the PEB’s determination that “equinus deformity [bilateral],” “pes planus deformity [bilateral],” and “Grade 1 inversion ankle sprain [right]” were not unfitting.  The two congenital foot diagnoses were contributory to and subsumed with the rating for the unfitting plantar fasciitis; thus, not subject to separate rating without violation of VASRD §4.14 (avoidance of pyramiding).  That notwithstanding it would be difficult to establish service aggravation of these pre-existing conditions.

Regarding the right ankle condition, a result of the above strain injury, the NARSUM documented some mild swelling and tenderness with a stable joint, and did not specify pain or functional limitations beyond those for the feet.  The ankle strain (along with the congenital foot conditions) was forwarded as meeting retention standards.  It was never profiled and it was not implicated in the commander’s performance statement.  

Members agreed that there was no performance-based evidence indicating that any of the above conditions significantly interfered with duty requirements.  After due deliberation and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determinations for the congenital foot or right ankle conditions; thus, they were not eligible for service rating.

BOARD FINDINGS:  In the matter of the bilateral plantar fasciitis condition the Board unanimously recommends a disability rating of 10%, coded 5299-5276 IAW VASRD §4.71a. In the matter of the contended equinus deformity, pes planus deformity, and right ankle sprain conditions, 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.  

The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Bilateral Plantar Fasciitis	5299-5276	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140627, 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, AR20160017194 (PD201403459)

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