RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00412
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020826

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Explosive Ordinance Disposal, medically separated for “chronic mechanical low back pain due to repetitive back strain” and “chronic bilateral foot pain secondary to plantar fasciitis and entrapment neuropathy without loss of function and manifested by pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  His conditions continue to worsen and impact his daily life.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’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 panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’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 panel 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 panel 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 – 20020510	VARD - 20030109	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain Due to Repetitive Back Strain	5299-5295	10%	Degenerative Disc Disease with Chronic Low Back Pain	5010-5292	20%	20021211	
			Spondylolysis	5299-5292	NSC		
Chronic Bilateral Foot Pain Secondary to Plantar Fasciitis and Entrapment Neuropathy without Loss of Function and Manifested by Pain	5399-5310	0%	Chronic Plantar Fasciitis with Nerve Entrapment	8599-5276	10%		
Hypertension	Not Unfitting	Hypertension	7101	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic mechanical low back pain condition began in September 1993 after 2 years in service.  Enlistment examinations dated 22 March 1991 documented no reference to back pain and normal spinal examinations.  Radiographic investigations (X-rays and MRI) in September 2001 documented a congenital malformation of the spine (an extra L6 vertebrae) with a left-sided fracture (pars interarticularis defect) and no evidence of slippage (spondylolisthesis) or nerve compromise (impingement).  Surgery was not indicated.  

At the 23 January 2002 MEB examination (recorded on DD Form 2808), 7 months prior to separation, the physical examination showed paraspinal muscle tenderness, full range of motion, normal reflexes and no evidence of nerve tension.  

On a 17 April 2002 NARSUM addendum, 4 months prior to separation, the physical examination showed forward flexion with the hands “approximately 24 inches from the floor” or 0-50 degrees (normal 90), “approximately” 5 degrees of extension, and bilateral lateral bending to 20 degrees (normal 30) with no abnormal curvature noted.  Strength, sensation, reflex and nerve tension examinations were all normal.  

On a 10 May 2002 NARSUM examination, 3 months prior to separation, the CI reported pain aggravated by wear of military gear, sitting or walking greater than 15 minutes, bending and running.  The physical examination showed a forward flexion of 75 degrees, limited by pain, extension to 20 degrees, bilateral lateral flexion to 25 degrees, and normal bilateral rotation.  There was no evidence of nerve tension.  

At the 11 December 2002 VA Compensation and Pension (C&P) evaluation, performed 4 months after separation, the CI reported chronic stiffness and pain with lifting, and denied radiation, functional impairment, and time lost from work.  The physical examination showed a normal gait, flexion to 80 degrees and extension to 20 degrees, both limited by pain, and normal bilateral rotation and side bending.  Radiographic evaluation (X-rays) documented normal vertebral bodies, and disc spaces and no evidence of osteoarthritic changes.  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated 10% for the low back condition, analogously coded 5299-5295 (lumbosacral strain), citing congenital defects (existing prior to service) and no permanent service aggravation, however compensable IAW 10 USC 1207a (8-year rule).  The VA rated 20% for the DDD and low back condition, analogously coded 5010-5292 (spine, limitation of motion, lumbar), based on the VA C&P examination 4 months after separation, citing a ‘moderate’ limitation of forward flexion of 80 degrees (normal of 95 degrees).  At the time of separation in August 2002, the 2002 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity; whereas, the current standards specify rating thresholds in degrees of ROM impairment.  When older cases have ROMs in evidence, the panel reconciles (to the extent possible) its opinion regarding degree of severity for the older spine codes.  The panel considered disability ratings for the back condition using the 2002 VASRD codes: 5295 (lumbosacral strain), 5293 (intervertebral disc syndrome), and 5292 (spine, limitation of motion, lumbar).  

Four months prior to separation, there was documentation of forward flexion to 50 degrees that would support a 20% rating using code 5292 for spine, limitation of motion, at a moderate level.  There was also documentation of improved ROM at the NARSUM examination (to 75 degrees flexion) and at the VA C&P exam 4 months after separation (to 80 degrees flexion), which would support a rating of 10% for “slight” limitation of motion.  The VA, however, used a ROM of 95 degrees as being normal, and therefore afforded a rating of 20% for ‘moderate’ limitation of motion.  

The panel next considered the probative values of the April 2002 NARSUM addendum, May 2002 NARSUM, and December 2002 C&P examinations.  The April NARSUM addendum reported “approximate” measurements and, therefore implies estimations rather than actual measurements.  The May NARSUM and December C&P examinations documented similar measurements (75-80 degrees), and were equidistant to the date of separation, however, were interpreted differently by the PEB (10% rating) and VA (20% rating).  The ROMs recorded during the NARSUM and VA examinations were not so different as to be inconsistent with the CI’s back condition.  Panel members agreed that both the May NARSUM and December VA examination were of equal quality with regard to rating the back condition at the time of separation and also noted that there was no other evidence proximate to separation which would add weight favoring the 10% versus the 20% rating.  Therefore, in consideration of reasonable doubt (§4.3) as well as the functional limitations (§4.40, §4.45) described in the May NARSUM and VA examinations, the panel concluded that there was not a preponderance of evidence to favor the 20% rating over the 10% rating and therefore recommended no change to the 10% rating.  

The panel next considered code 5293 for intervertebral disc syndrome which requires ‘moderate,’ or ‘severe’ recurring attacks of incapacitating episodes and this information was not in evidence for the panel’s review.  There were no missed work days or prescribed bed rest, only the inability to perform his full MOS.  There were no symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of a diseased disc that would afford a greater than 10% rating advantage to the CI.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.

Plantar Fasciitis and Entrapment Neuropathy with Chronic Pain.  The PEB combined the bilateral foot conditions as a single unfitting condition coded 5399-5310 (Group X) and rated 0%.  The 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 or implied adjudication that each condition was separately unfitting.  The panel also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel 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 referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the bilateral foot conditions are presented, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the STR and the MEB NARSUM, the CI’s bilateral foot pain condition began in 1991 during basic training and was initially resolved with conservative treatment.  However, left foot pain developed in March 1993 after no specific trauma.  Electrophysiologic studies in October 2001 documented a sensory neuropathy of both feet.  In October 2001, the foot condition was diagnosed as plantar neuropathy secondary to congenital bony abnormalities.  The 27 January 2002 commander’s statement noted that job requirements included travel and long hours of standing, and that the CI was unable to walk or stand for longer than 30 minutes, or walk half a mile without being in pain.  At the 23 January 2002 MEB examination (recorded on DD Forms 2807 and 2808), 7 months prior to separation, the CI reported paresthesias, pain and muscle spasms of the bilateral feet, worsened after prolonged standing.  Orthotics were worn with combat boots, but not required with civilian shoes.  The physical examination showed bilateral deformities of the 3rd, 4th, and 5th digits, and a “partially inverted” walk.  The sensory examination (to sharp and dull) was intact.  On the 17 April 2002 NARSUM addendum, 4 months prior to separation, the physical examination showed medially deviated 2nd and 3rd digits, pronated feet during standing, bilaterally pronated ankles, and no evidence of ankle laxity.  A 17 April 2002 profile written for “chronic bilateral foot pain” prohibited running, but allowed walking at his own pace.  

At the 11 December 2002 C&P evaluation, performed 4 months after separation, the CI reported pain at rest, and when standing or walking.  He denied functional impairment, other than limitations with prolonged walking or standing.  The physical examination showed a normal gait without assistive device, supports or inserts, and no evidence of abnormal weight bearing.  Ankle dorsiflexion was to 20 degrees and plantar flexion was to 45 degrees (both normal) without pain.  There was no evidence of flat or claw feet, deformity, and no tenderness of the plantar aspect or metatarsal regions of the feet.  There were no hammertoes, or hallux valgus or rigidus, and no evidence of limited function while standing or walking.  The VA examiner concluded with a diagnosis of “bilateral foot neuropathy” and that, both subjectively and objectively, the paresthesias described were consistent with this diagnosis.  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated 0% for the bilateral foot condition, analogously coded 5399-5310 (Group X), citing pain, without functional loss.  The VA rated 10% for the “chronic plantar fasciitis with nerve entrapment” condition, coded 8599-5276 (neuritis; flat foot, acquired), and based on the C&P examination 4 months after separation, citing mild paresthesias without foot abnormalities.  

The panel first considered if each foot could be reasonably justified as separately unfitting having decoupled them from the combined PEB adjudication.  The panel noted that most entries addressed both feet and that neither foot was more significantly affected than the other.  There was no evidence of chronic deformities, weakness, swelling, or callouses noted.  The permanent profile included limitations that would have resulted from either foot condition alone.  The commander’s statement and NARSUM addendum implicated both feet.  The bilateral condition was forwarded by the MEB and adjudicated as unfitting.  The panel determined the record in evidence did not reasonably support that either foot was separately unfitting; however, taken in combination, the condition was unfitting.  The panel majority agreed separate ratings were not supported by the evidence at hand.  

For reasons elaborated previously, the C&P examination was considered most probative for rating.  This examination documented a normal bilateral foot examination with no evidence of tenderness, deformity, abnormal weight bearing, or abnormal motion.  The VASRD does not have a specific code for plantar fasciitis and it must be rated analogously.  The panel debated several options for coding and rating.  The panel noted codes 5276 (flatfoot) and 5278 (claw foot) were not applicable since the CI had a normal arch, and no consistent deformities.  The 5279 code (metatarsalgia, anterior) was not supported by the evidence.  Additionally, the lack of boney involvement in either foot excluded other codes such as 5280 or 5283.  Weakness was not in evidence to support code 5277.  There was no evidence of a ‘moderate’ foot injury, therefore, 5284 (other foot injuries) was not applicable in this case.  

There were no additional coding options applicable to the rating of this condition.  The panel deliberated the application of §4.59 and §4.40 and agreed the record did not sufficiently document the condition was compensable under either provision since the record in evidence demonstrated no loss of function and no evidence of painful motion resulting in functional impairment.  Thereupon, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral foot condition.  

Contended PEB Conditions:  Hypertension.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

PANEL FINDINGS:  In the matter of the DDD and low back condition, the panel unanimously recommends no change in the PEB adjudication IAW 2002 VASRD.  In the matter of the bilateral foot condition and IAW VASRD §4.124a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended hypertension condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the panel’s scope of review for consideration.  The panel majority, 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 20150602, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

Minority Opinion

The minority voter first considered that each foot could be reasonably justified as separately unfitting having decoupled them from the combined PEB adjudication.  Most entries addressed both feet and both feet were affected equally.  The permanent profile included limitations that would have resulted from either foot condition alone.  The commander’s statement and NARSUM addendum implicated both feet.  The bilateral condition was forwarded by the MEB and adjudicated as bilaterally unfitting by the PEB.  

The minority voter noted that the right and left plantar fasciitis, as isolated conditions, would have each rendered the CI incapable of continued service for his MOS and that the conditions merit separate ratings.  

For reasons elaborated previously, the C&P examination was considered most probative for rating.  This examination documented a normal bilateral foot examination with no evidence of tenderness, deformity, abnormal weight bearing, or abnormal motion, conferring no rating higher than the 0% adjudicated by the PEB using analogous coding under 5310 (Group X) code.  However the examiner did find objective evidence of a bilateral foot neuropathy.  

IAW VASRD §4.124 (neuralgia, cranial or peripheral), “when the involvement is wholly sensory, the rating should be for the ‘mild,’ or at most, the ‘moderate’ degree.”  There was electrodiagnostic evidence of a bilateral foot neuropathy in October 2001.  The VA examiner concluded that there was objective evidence of a bilateral foot neuropathy.  As this is not a bilateral code, each foot can separately be afforded a rating of 10%, analogously coded 8699-8624 (tibial neuritis).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the minority voter recommends separate disability ratings of 10% for the left and 10% for the right foot condition, coded 5276-8624 IAW VASRD §4.71a and §4.124a.  

FINDINGS:  In the matter of the bilateral foot condition, the minority voter recommends separate disability ratings of 10% for the right foot and 10% for the left foot, coded 5276-8624 IAW VASRD §4.71a and §4.124a.  

The minority voter 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	
DDD and Low Back Pain	5299-5295	10%	
Right Plantar Fasciitis and Entrapment Neuropathy	5276-8624	10%	
Left Plantar Fasciitis and Entrapment Neuropathy	5276-8624	10%	
COMBINED w/ BLF	30%	

AR20170005968, XXXXXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and by a majority vote the DoD PDBR found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  The Board’s minority vote recommended your disability rating be increased to 30%.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I reject both recommendations.  I regret to inform you that your application to the DoD PDBR is denied.  There is insufficient justification to support the Board’s recommendation and minority opinion in accordance with Army and Department of Defense regulations.

	I have found that your disability rating should be modified (20%) but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,					      
						      					
Enclosure