RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01856
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20060620

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Infantryman, medically separated for “bilateral plantar fasciitis” and “chronic low back pain,” rated at 0% each, with a combined disability rating of 0%.  

CI CONTENTION:  After 16 years of service he was not afforded the opportunity to reclassify and continue his military service but was given a zero percent disability.  The 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 - 20060502	VARD - 20061221	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Plantar Fasciitis	5399-5310	0%	Bilateral Plantar Fasciitis	5399-5020	10%	20061002	
Chronic Low Back Pain Secondary to Left L4 5 Paracentral Disc Protrusion with Extruded or Free Disc Fragment	5243	0%	L4-5 Paracentral Disc Protrusion	5243	10%	20061002	
Obstructive Sleep Apnea	Not unfitting	Sleep Apnea	6847	50%	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Bilateral Plantar Fasciitis (PF).  The PEB combined the bilateral PF conditions as a single unfitting condition coded analogously to 5310 (Group X-includes plantar fascia) 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.  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 PF conditions is presented below with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s foot pain began in 2000 and he sought treatment in March 2004 after attempting multiple types of inserts and styles of boots.  A bone scan in January 2005 was negative for stress fractures of the lower extremities.  Bilateral weight bearing foot X-rays obtained on 18 March 2005 showed bilateral mild hallux valgus (HV-bunions) and bilateral pes planus (PP-flatfoot).  At a 21 March 2005 podiatry evaluation chronic PF (inflammation of connective tissues on the bottom of the foot) was diagnosed and he was given orthotics without relief.  At a 7 March 2006 orthopedic evaluation the CI reported approximately 5 months of bilateral foot pain and that his feet had become “flat.”  He reported he was unable to stand or walk for prolonged periods or ruck march due to his feet.  He was diagnosed with bilateral PF and flexible pes planus (PP).  No good surgical option was available and a MEB was recommended.  Serial examinations in the STR by podiatry, orthopedics and physical therapy from March 2005 to March 2006 documented ankle range of motion (ROM) that was from moderately limited to “WNL” (within normal limits).  

The 20 December 2005 commander’s statement implicated the bilateral foot condition as impairing the CI’s performance in his primary military specialty.  The commander noted that the CI had been given a permanent profile for the feet on 19 October 2005.  

The 21 April 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of daily bilateral foot pain that was aggravated by weight bearing activities.  Physical examination showed bilateral ankle ROM of dorsiflexion (DF) 0 degrees (normal 20) and plantar flexion (PF) of 55 degrees (normal 45).  The MEB NARSUM examiner determined that the CI did not meet retention standards due to the bilateral PF condition.  The permanent profile dated 24 April 2006 listed “severe plantar fasciitis.”  

At the 2 October 2006 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported no foot pain swelling, or stiffness at rest, but he had pain with walking or standing that was not relived by arch supports or corrective shoes.  The examination of the feet was reported for the bilateral feet.  Physical examination showed a normal gait.  Bilateral ankle ROM was DF 20 of degrees and PF of 45 degrees.  There was tenderness.  There was no PP, HV, or metatarsalgia present.  Bilateral non-weight bearing foot X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral feet 0%, coded 5399-5310 (analogous to Group X muscle function:  movement of forefoot and toes), citing rating analogous to “slight” muscle injury.  The VA rated bilateral plantar fasciitis condition 10%, coded 5399-5020 (analogous to synovitis), based on the C&P examination 4 months after separation.  

The panel first considered if the bilateral PF conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The permanent profile listed severe plantar fasciitis and the commander’s statement implicated both feet.  The CI was evaluated and treated for bilateral PF and the MEB NARSUM indicated the bilateral PF conditions caused the CI to fall below retention standards.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the panel’s presumption that each PF condition was reasonably considered separately unfitting.  The relevant clinical evidence for rating the PF conditions was essentially the same and the panel therefore considered its rating recommendation for the unfitting right and left PF together.  

The panel reviewed the rating criteria of 5399-5310 which are subjective, with a 0% rating for “slight,” 10% rating for “moderate,” and 20% for “moderately severe muscle injury.”  The panel considered that when coding the disability due to PF analogously as 5310, the discrimination between the “slight” and “moderate” characterizations depends on the presence of at least one “cardinal sign or symptom” of muscle injury specified as “loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement” for “moderate” as opposed to none for “slight.”  In the STR, and the MEB NARSUM examination the CI reported constant foot pain aggravated by weight bearing activities.  At the post-separation VA examination, the CI reported no foot pain at rest, but continued pain with all weight bearing activities, not relived by orthotics.  The panel concluded that there was sufficient evidence for a 10% rating of each foot under 5310 for “moderate” muscle injury, but did not meet the threshold to be characterized as “moderately severe.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% each for the right and left foot, both coded 5399-5310.  

Chronic Low Back Pain.  According to the STR and the MEB NARSUM, the CI’s back condition began in 1995 and worsened in April 2004 after slipping and falling on ice.  The CI was treated conservatively, but continued to report low back pain (LBP) with shooting pain to the left lower extremity (LE) with certain movements.  Magnetic resonance imaging performed on 10 September 2005 showed degenerative disc disease with a herniated disc to the left at L4-5.  Electrodiagnostic studies performed on 20 October 2005 showed an acute L5-S1 radiculopathy.  ROM measurements by physical therapy in December 2005 measured flexion of 75 degrees (normal 90) and a combined ROM of 205 degrees (normal 240).  At a 3 February 2006 orthopedic evaluation TL ROM was recorded as “normal” in all planes.  At a 7 March 2006 neurosurgical evaluation the physical examination noted an abnormal gait.  The spine was normal in appearance.  There was no tenderness to palpation or muscle spasm.  Straight leg raise testing (SLR) to elicit radicular symptoms was positive.  Strength, sensation, and reflexes of the LEs were normal.  The neurosurgeon indicated that the CI’s complaints were “mainly low back pain in nature his radicular component does not appear to be prevolent (sic).”  The CI declined surgical intervention and the neurosurgeon agreed and recommended a MEB if conservative treatment was not successful.  

During the April 2006 MEB examination (recorded on DD Forms 2807-1 and 2808) 2 months prior to separation, the examiner noted “no radicular pain at this time” but on physical examination SLR caused back pain.   The 21 April 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of chronic low back pain aggravated by activity.  Physical examination showed no spinal tenderness to palpation.  There was normal strength and neurological examination and SLR caused back pain only.  The examiner referred to the physical therapy measured ROM from 19 April 2006.  Flexion was 55 degrees (normal 90) and a combined ROM was 145 degrees (normal 240).  Pain with motion was noted.  

At the 2 October 2006 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported constant LBP and stiffness with numbness and weakness of the left LE.  The pain was relieved by rest and anti-inflammatory and muscle relaxant medications.  He reported his condition did not cause incapacitation.  Physical examination showed a normal gait.  There was “mild” tenderness to percussion, but there was no muscle spasm or radiating pain with movement.  Lower extremity strength, sensation, and reflexes were normal and SLR was positive on the left.  Thoracolumbar ROM was 75 degrees flexion and combined ROM 225 degrees and there was no additional loss of ROM with repetitive motion.  Lumbar spine X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5243 (intervertebral disc syndrome), citing “range of motion limited by pain.”  The VA rated the back condition 10%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 4 months after separation, citing ROM.  

The TL ROM noted at the MEB NARSUM examination supports a 20% rating based on TL flexion “greater than 30 degrees but not greater than 60 degrees” but the ROM at the VA examination supported a 10% rating for flexion greater than 60 degrees.  The panel gave greater probative value to the MEB NARSUM examination prior to separation which was the most proximate examination to the date of separation and therefore agreed the evidence supports a 20% rating.  
The panel considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease, there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5243.  

Contended PEB Condition:  Obstructive Sleep Apnea (OSA).  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The CI underwent a sleep study in February 2006 and was evaluated by a sleep specialist on 20 March 2006.  At the sleep evaluation the CI reported he felt like he got “good sleep” and denied low energy during the day or excessive daytime sleepiness, but sought an evaluation due to snoring and “apneic” episodes witnessed by his wife.  He was diagnosed with mild sleep apnea and the specialist noted that since the CI was “being boarded out of the military due to his back it would be of benefit for him to be on CPAP [continuous positive airway pressure device].”  Although the OSA was listed on the permanent profile dated 24 April 2006, the commander’s statement did not implicate either OSA or symptoms such as fatigue or sleepiness as impairing the CI’s successful duty performance.  The MEB NARSUM examiner mentioned that the CI would be not be deployable to a situation in which he had no access to electricity and at the time of the NARSUM the CI was still awaiting his CPAP equipment.  However, on the DA Form 199 the PEB noted that “inability to deploy is not a sole reason for a condition to be determined separately unfitting.”  There was no performance-based evidence from the record that the OSA condition significantly interfered with satisfactory duty performance at separation.  Additionally, according to DoDI 1332.38, where there has been adequate duty performance until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even if medical evidence indicates questionable physical ability to continue to perform duty.  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 plantar fasciitis condition, the panel unanimously recommends a disability rating as follows: an unfitting right PF condition and an unfitting left PF condition, each rated 10%, both coded 5399- 5310 IAW VASRD §4.73.  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended OSA condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There are 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; 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	
Right Plantar Fasciitis	5399-5310	10%	
Left Plantar Fasciitis	5399-5310	10%	
Chronic Low Back Pain Secondary to Left L4 5 Paracentral Disc Protrusion with Extruded or Free Disc Fragment	5243	20%	
COMBINED w/BLF	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150708, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170009220, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

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

Sincerely,					      
Enclosure