RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00281
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060330

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E5, Military Policeman, medically separated for “chronic low back pain” and “plantar fasciitis” rated 10% and 0%, respectively, with a combined disability rating of 10%.   

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 on 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 - 20060222	VARD - 20060929	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Low Back Strain	5237	10%	20060517	

Plantar Fasciitis
	5399-5310	0%	Plantar Fasciitis, Right	5299-5021	0%	20060517	
			Plantar Fasciitis, Left	5299-5021	0%	20060517	
Bilateral Retro Patellar Pain Syndrome	Not Unfitting	Left Knee Condition	5260	NSC	20060517	
		Right Knee Condition	5260	NSC	20060517	
Left Shoulder Pain	Not Unfitting	Left Shoulder Condition	5203	10%	20060517	
Asthma	Not Unfitting	Asthma	6602	10%	2060517	
Bilateral Tinnitus	Not Unfitting	Tinnitus	6260	10%	20060517	
Adjustment Disorder	Not Unfitting	Adjustment Disorder	9440	NSC	20060511	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:
 
Low Back Pain.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI initially “twisted” his low back while running in February 2004.  Imaging studies (X-rays) performed in October 2004, revealed a single-level lumbosacral disc protrusion without spinal stenosis.  Despite non-surgical treatment to include physical therapy (PT), local injections, medications, and manipulation; the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty.  The MEB forwarded “low back pain with L5-S1 disc desiccation” for PEB adjudication.  

At the MEB NARSUM examination on 15 December 2005, 4 months prior to separation, the CI’s chief complaint was “low back pain”.  His physical examination (PE) revealed painful and decreased motion of the thoracolumbar spine.  His measured range of motion (ROM) of the spine was flexion of 45 degrees (normal 90), extension of 10 degrees (normal 30), and bilateral lateral flexion of 20 degrees (normal 30); resulting in a combined ROM of 255 degrees.  Distal strength and neurosensory components were normal.  There was tenderness about the muscle mass adjacent to the lumbar spine.  At the 17 May 2006 VA Compensation and Pension (C&P) evaluation, performed 6 weeks after separation, the CI reported a daily non-capacitating burning/sharp low back pain that extended into his right leg at a 7/10 pain scale.  His pain was aggravated by physical activity and relived with rest and medication.  The PE revealed spinal tenderness as well as painful and decreased ROM.  Thoracolumbar flexion was 65 degrees (normal 90) and extension was 20 degrees (normal 30).  All other directional movements were normal.  There was no guarding present nor any evidence of muscular spasms, and no signs of intervertebral disc syndrome.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA utilized the same code of 5237 (lumbosacral strain) and rated the condition at 10%, citing tenderness and limited motion, respectively.  Board members first deliberated and agreed that the VA examination held greater probative value based upon its temporal proximity to separation.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on the VA C&P examination.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  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 low back condition.

Plantar Fasciitis.  According to STR, the MEB NARSUM, the CI was diagnosed with bilateral plantar fasciitis in December 2005.  The impact on the CI’s duty was pain in both feet with running, jumping, marching, or prolonged standing or walking.  X-rays of both feet were essentially normal.  Despite podiatry prescribed orthotics (to include night splints), the bilateral plantar fasciitis could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty.  The MEB forwarded “bilateral plantar fasciitis” for PEB adjudication.  

At the MEB NARSUM examination, 4 months prior to separation, the CI’s chief complaint was “bilateral foot pain”.  His PE revealed tenderness about both heels.  Semi-flexible pes planus (flat feet) was observed without redness, swelling, or bruising.  At the 6-week post separation VA C&P examination, tenderness, described as “slight” was elicited on the bottom of both feet.  The provider noted the CI “does not have any limitation with standing and walking.”  
  
The Board directed attention to its rating recommendation based on the above evidence.  Although utilizing different primary codes, both the PEB and VA rated the foot conditions at 0%; whereas the PEB bundled both feet with a single muscle rating and the VA separately rated each foot under a musculoskeletal code.  The Board’s initial charge in this case was directed at determining if the PEB’s approach of combining both feet under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be found unfit because of physical disability.  Board members carefully reviewed the podiatry evaluations and agreed that the CI’s overall foot conditions, isolated orthotic treatments, and generally unchanging clinical symptoms did not significantly center about either foot independently, but rather a bilateral condition.  Board members found it reasonable to surmise that it was the combination of pathology from both feet that rendered the CI unfit to perform in his military specialty.  In regards to an impairment rating, members agreed that the insidious onset of symptoms coupled with minimal adverse PE findings and the provider’s statement of no limitations with standing or walking, did not support a positive rating.  Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3, the Board concluded that there was insufficient cause to recommend a change in the PEB’s adjudication for the bilateral plantar fasciitis condition.
 
Contended PEB Conditions:  Bilateral Knee Condition, Left Shoulder Pain, Asthma, Bilateral Tinnitus (Ringing in the Ear), and Adjustment Disorder.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions 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.  Except for the left shoulder pain, all of the contended conditions were not profiled or implicated in the commander’s statement and all (to include the shoulder) were not judged to fail retention standards.  The conditions were reviewed and considered by the Board.   There was no performance based evidence from the record that any of these conditions (excluding the left shoulder 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’s fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.

Contended Left Shoulder Pain.  According to STR, the MEB, and the NARSUM, the CI initially injured his left shoulder while on the obstacle course in 2003.  Pursuant to persistent pain, the CI underwent surgical resection of the distal portion of the left collar bone in September 2005.  Despite aggressive PT, his left shoulder pain persisted.  The final PT evaluation was performed 2 weeks prior to the NARSUM and 4 months prior to separation.  PT measured shoulder ROM of 135 degrees flexion (normal 180) and 140 degrees abduction (normal 180).  The NARSUM documented the CI had recent left shoulder surgery, with residual tenderness and decreased range of motion.  At the 6-week post separation VA C&P examination, the CI endorsed a constant localized left shoulder pain at an 8/10 scale.  Additionally, he complained of continuous swelling and muscle spasms since his surgery.  His PE revealed decreased and painful motion of the left shoulder; flexion of 160 and extension of 100 degrees.  He states his condition does not cause incapacitation.   

The Board directed attention to its rating recommendation based on the above evidence.  Board members first agreed that near the time of separation the CI was still in the rehabilitation phase from his shoulder surgery and that the findings of persistent painful motion coupled with a limited ROM, supported an unfitting condition for the occupation of a police officer.  Therefore, after due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the left shoulder condition favored recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 5299-5201 and meets the VASRD §4.59 (painful motion) criteria for a 10% rating.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral plantar fasciitis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left shoulder condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 5299-5201 IAW VASRD §4.71a and §4.59.  In the matter of the contended bilateral knee condition, asthma, bilateral tinnitus, and adjustment disorder conditions, the Board unanimously recommends no change from the PEB’s 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	5237	10%	
Bilateral Plantar Fasciitis	5399-5310	0%	
Left Shoulder Pain	5299-5201	10%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150220, with attachments
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

20 MAR 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20170002591 (PD201500281)

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 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