RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00919
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Initial Entry Trainee, medically separated for “bilateral foot pain” with a disability rating of 10%.  

CI CONTENTION:  The CI noted his left shoulder operation.  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 review of disability ratings assigned 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 or non-compensable.  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 determination 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(s) 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 - 20060327	VARD - 20070523	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Foot Pain	5099-5003	10%	Injuries, Bilateral Feet	5299-5284	NSC	N/A	
Left Shoulder Pain	Not Unfitting	Residuals, Left Shoulder Injury	5201	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  N/A	

ANALYSIS SUMMARY: 

Bilateral Foot Pain.  According to service treatment records (STR) and the MEB (Medical Evaluation Board) narrative summary (NARSUM), the CI’s foot condition began during basic training.  The CI had a history of bilateral pes planus prior to enlistment but the foot pain was service aggravated.  The CI reported bilateral foot pain on the balls of both feet.  Bilateral X-rays in April 2005 showed bipartite (anatomic normal variant) sesamoid bones (small bones under the great toes) of both GTs.  The CI was diagnosed with sesamoiditis of the bilateral GTs (inflammation around the sesamoid bones).  The conditions were treated conservatively without significant relief.  The CI also underwent surgery 23 September 2005 on the right GT with removal of a sesamoid bone, without favorable results.  At the time of surgery, no fracture of the sesamoid bone was noted, but there was chondromalacia.  An orthopedic examination on 5 December 2005 showed TTP of the bilateral PF.  There was pain with dorsiflexion of both GTs.  There was tenderness of both GTs on ambulation.  There was normal strength bilaterally, with decreased sensation noted in the first web spaces.  Right foot X-rays 6 October 2005 noted the sesamoid bone removal without other comment.  The orthopedic specialist anticipated gradual improvement in the foot pain with modified activities and reduced weight bearing.  No surgery was recommended on the left foot since the right foot outcome was not optimal.  The permanent U2L3 profile listed left shoulder injury and bilateral feet pain.  The commander’s statement indicated that the CI’s shoulder and feet conditions impaired his ability to perform the duties of his MOS or physical fitness training.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated January 2006, 4 months prior to separation, the physical examination showed a normal walking gait, but heel–toe walking and jogging were unsteady, jumping caused immediate bilateral foot pain, and the CI used assistance to stand on his toes.  There was tenderness to palpation (TTP) of the right foot and decreased range of motion of the right GT with painful motion observed.  There was TTP of the left plantar fascia at the insertion on the heel and at the ball of the foot and base of the GT.  The MEB examiner circled “pes planus,” “severe,” and “asymptomatic” on the examination form 

The MEB NARSUM examination on 1 March 2006, 2 months prior to separation, noted complaints of constant pain under the balls of the feet at the PF insertion and at the heels at the PF origin, as well as tenderness to palpation of both GTs and pain with movement of the right GT.  The physical examination cited the findings from the MEB Form DD Form 2808.  There was no VA Compensation and Pension (C&P) evaluation in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The VA did not service-connect the bilateral foot pain, citing notification of failure to report for examinations and no receipt of service medical records.   The MEB forwarded six conditions of the feet as medically unacceptable to the PEB – bilateral great toe (GT) synovitis, sesamoiditis, and plantar fasciitis (PF) and right proximal fibular joint chondromalacia.  The PEB combined all six conditions as bilateral foot pain and adjudicated as a single unfitting condition.  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.  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 PEB DA Form 199 indicated that the sesamoiditis, synovitis, and PF conditions of each foot could not be separately rated due to overlapping symptoms and pyramiding.  The panel agreed that all the individual foot conditions resulted in the same disability of foot pain and could not be considered separately unfitting conditions or separately rated IAW VASRD 4.14.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of a single rating for bilateral foot pain was justified in lieu of separate ratings for each foot.  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 panel first considered if each foot pain condition remained separately unfitting as established above when separated from the combined PEB adjudication.  The bilateral foot conditions were permanently profiled.  The commander’s statement implicated both feet as impairing the CI’s successful completion of his duties.  The CI sought treatment for both feet in the STR and the MEB NARSUM determined the CI failed to meet retention standards due to the combined conditions of both feet.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the panel’s presumption that both the right and left foot conditions were reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right and left foot conditions at the time of separation.  

The clinical findings of the feet supported a 10% rating for each foot coded analogously to either 5279 (metatarsalgia) or pes planus (5276).  There is no higher than a 10% rating available for each foot under 5279.  There was no evidence of marked deformity, swelling on use, or characteristic callousities to support greater than a 10% rating for either foot for “severe” pes planus.  The panel considered if rating as other foot injury (5284) provided a higher rating for either foot.  However, 5284 criteria are subjective with 10% for “moderate”, 20% for “moderately severe’ and 30% for “severe” foot injury.  The panel consensus was that the foot injuries could not be characterized as moderately severe or severe based on the normal gait noted at the MEB examinations.  The CI was also diagnosed with PF of both feet and the panel reviewed alternatively rating the disability due to the foot conditions as 5399-5310 (analogous to muscle group X injury) IAW VASRD 4.73 (muscle injuries), which is an analogous code for PF.  However, the rating criteria are also subjective for 5310 and by similar reasoning as for 5284, panel consensus was that no higher than a 10% rating for “moderate” muscle injury could be supported for both feet.  Other VASRD foot codes were considered, but none were applicable in this case.  There was therefore no higher than 10% rating available for either foot.  After due deliberation, and considering all of the evidence, the panel recommends a separately unfit determination for each foot with a disability rating of 10% for the right foot pain condition and 10% for the left foot pain condition, both coded 5299-5279.  

Contended PEB Conditions:  Left Shoulder Pain.  At the time of the MEB NARSUM, the CI was post-surgery for the left shoulder in June 2005 for repair of a cartilage injury (labral tear) and involved in self-directed physical rehabilitation of the shoulder.  Although the commander’s statement dated 18 January 2006 noted he CI had shoulder pain with physical limitations, the left shoulder pain condition was given a permanent U2 profile.  A”2” profile designation indicates a condition which requires some physical limitations but is not in all cases disqualifying for continued military service.  There was not a preponderance of performance-based evidence from the record that suggested the condition significantly interfered with satisfactory duty performance within the U2 profile at separation.  The MEB NARSUM examination noted full shoulder range of motion and the MEB NARSUM examiner determined that the shoulder condition met retention standards.  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.  

BOARD FINDINGS:  In the matter of the bilateral foot pain condition, the panel unanimously recommends a disability rating as follows: an unfitting right foot pain condition and an unfitting left foot pain condition, each rated 10%, both coded 5299-5279 IAW VASRD §4.71a.  In the matter of the contended left shoulder 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 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	
Right Foot Pain	5299-5279	10%	
Left Foot Pain	5299-5279	10%	
COMBINED	20%	
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170007156, XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  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. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure