RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01201
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061023

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Unit Supply Specialist, medically separated for “chronic low back pain” and “bilateral foot pain secondary to plantar fasciitis, pes planus and posterior tibial tendon dysfunction,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  “…surgery was done on my right ear to fix a hearing loss problem and I ended up with 100% loss of hearing.  Surgery was a failure.”  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 - 20060719	VARD - 20070212	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5243	10%	Degenerative Disc Disease T12-L1	5243	10%	20060916	
Bilateral Foot Pain Secondary to Plantar Fasciitis, Pes Planus & Posterior Tibial Tendon Dysfunction	5399-5310	0%	Bilateral Pes Planus	5310	0%		
Right Middle Ear Conduction Hear Loss	Not Unfitting	Bilateral Hearing Loss	6100	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s “chronic low back pain” condition began in 1999 without any specific incident.  Plain film X-rays and MRI showed only degenerative disc disease of the thoracolumbar spine.  There was no surgical indication.  After adequate conservative treatment the condition was not able to be adequately rehabilitated to allow unrestricted duty.  The MEB forwarded “chronic low back pain secondary to thoracolumbar degenerative disk disease” for PEB adjudication.  The MEB NARSUM examination on 9 June 2006, 4 months prior to separation, noted complaints of back pain that was worse with rucksack marching, excessive running and strenuous unit training.  Physical examination showed normal gait and full active ROM in all planes except for forward flexion that was measured at 65 degrees (normal 90) after repetition and was pain limited.  There is no mention of muscle spasms.  

At the 19 September 2006 VA Compensation and Pension (C&P) evaluation, performed 1 month before separation, the CI reported low and mid back pain that was present every day and made worse by physical activity and made better by rest.  The CI denied periods of incapacitation from his back pain.  Physical examination showed normal posture and gait.  ROM is listed as forward flexion to 70 degrees (normal 90), extension 25 degrees (normal 30), right and left lateral flexion to 20 degrees (normal 30) and right and left rotation to 25 degrees (normal 30).  Combined ROM was 185 degrees (normal 240).  There was no muscle spasm and no tenderness noted.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5299-5243 (analogous to invertebral disk syndrome), citing tenderness to palpation and range of motion restricted by pain, without mechanical block.  The VA rated “degenerative disc disease T12-L1” 10%, coded 5243 (intervertebral disk syndrome), based on the VA C&P examination 1 month before separation, citing evidence of degenerative changes in service and reduced flexion to 70 degrees.  The Board agree there was limitation of forward flexion of greater than 60 degrees but not greater than 85 degrees to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine.  Forward flexion was not limited to less than 60 degrees or the combined range of motion not limited to less than 120 degrees nor was there muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour to support a 20% rating.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under code 5243 or evidence of ratable peripheral nerve impairment which would provide for additional rating.  There was also no evidence of fracture or ankylosing of the spine to support a higher 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 “chronic low back pain” condition.  

Bilateral Foot Pain Secondary to Plantar Fasciitis, Pes Planus & Posterior Tibial Tendon Dysfunction.  According to STR and the MEB NARSUM, the CI’s “bilateral foot pain secondary to plantar fasciitis, pes planus and posterior tibial tendon dysfunction” condition began without specific cause intermittently in 1999 but became pronounced in 2005 while attending school.  The MEB forwarded “chronic bilateral foot pain secondary to pes planus, plantar fasciitis, posterior tibial tendon dysfunction and equinus” for PEB adjudication.  The podiatry consultation on 24 May 2006, 5 months prior to separation, in conjunction with the MEB NARSUM noted complaints of bilateral foot pain that prevented the CI from carrying heavy equipment and inability to stay on his feet for long periods of time.  Physical examination showed pes planus (flat feet), difficulty with single heal rise bilaterally, less than 10 degrees dorsiflexion of ankles bilaterally (normal 20) and tenderness of the medial arch bilaterally.  The diagnoses were bilateral posterior tibialis tendon dysfunction, flat foot, acquired deformity of foot–equinus (inability to fully dorsiflex) and plantar fasciitis.  

At the 19 September 2006 VA Compensation and Pension (C&P) evaluation, performed 1 month before separation, the CI reported bilateral foot pain that occurred while standing or walking and lasted for approximately 2 hours each day and traveled up to the calves.  Physical examination showed signs of abnormal weight bearing including callosities located at the 1st metatarsal phalangeal joint on the right but no tenderness.  The examiner noted no tenderness, weakness, edema, atrophy, or disturbed circulation of either foot.  Posture and gait were normal.  The examiner noted bilateral ankle range of motion to be dorsiflexion 20 degrees (normal) and plantar flexion 45 degrees (normal).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the “bilateral foot pain secondary to plantar fasciitis, pes planus and posterior tibial tendon dysfunction” condition 0%, coded 5399-5310 (group X. function, muscle injury), citing ROM limited by pain.  The VA rated “bilateral pes planus” 0%, coded 5310, based on the VA C&P examination 1 month before separation, citing no x-ray evidence or pathological findings to make a diagnosis.  The Board noted that the podiatry evaluation proximate to separation stated that the CI had bilateral foot pain with weight bearing activities, that he had previously been treated with ibuprofen, physical therapy, orthotics from physical therapy and over the counter orthotics and that this was still an active problem for him.  The examination included observation of pes planus and tenderness to palpation of the medial arch bilaterally.  Heel pain was consistent with a moderate disability using analogous code 5299-5276 (flatfoot, acquired) and a 10% rating is applied whether unilateral or bilateral.  There was no evidence of severe disability with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities to support a higher 30% rating.  Using the code that both the PEB and the VA did, 5310 (schedule of ratings – muscle injuries, group X) it would not be possible to rate greater than a slight disability, 0% because of the lack of impact on propulsion and thrust in walking.  The Board also agreed that VASRD §4.59 (painful motion) did not apply as the heel is not a joint.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the “bilateral foot pain secondary to plantar fasciitis, pes planus and posterior tibial tendon dysfunction,” analogously coded 5299-5276.  

Contended PEB Conditions:  Right Middle Ear Conduction Hear Loss.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The condition was not profiled or implicated in the commander’s statement; however, the Board noted that the commander’s statement and the final profile were both written prior to the CI’s right ear operation.  Board members reviewed the 2 October 2006 audiogram and compared it to US Army Standards of Medical Fitness and found that the CI had pure tone audiometric test results consistent with H2 hearing profile which is not 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 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 “chronic low back pain” condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the “bilateral foot pain secondary to plantar fasciitis, pes planus and posterior tibial tendon dysfunction” condition, the Board unanimously recommends a disability rating of 10%, analogously coded 5299-5276 IAW VASRD §4.71a.  In the matter of the contended “right middle ear conduction hear loss” condition, 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	
Chronic Low Back Pain	5299-5243	10%	
Bilateral Foot Pain Secondary to Plantar Fasciitis, Pes Planus & Posterior Tibial Tendon Dysfunction	5299-5276	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150611, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170005811, XXXXXXXXXXXXXXXXXXXXX

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