RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01977
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050616

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Intelligence Analyst, medically separated for “chronic radiating low back pain” and “chronic ankle and foot pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI made no specific contention.  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 - 20050317	VARD - 20050805	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating LBP	5243	10%	DDD w/ Radiculopathies, L-Spine	5242	10%	20050705	
Chronic Ankle & Foot Pain	5279	10%	Achilles Tendonitis …	5024-5279	10%	20050705	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Radiating Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in December 2003 after reaching and twisting for an object.  Radiographic imaging (MRI) in March 2004 documented a large herniated disc at the L4-L5 vertebral level impinging on the L5 nerve root and multilevel degenerative disc disease (DDD).  At the 5 November 2004 PT examination, 7 months prior to separation, ranges of motion (ROM) performed for the MEB recorded thoracolumbar forward flexion to 60 degrees (normal 90), with combined ROM at 180 degrees (normal 240), with all planes of motion limited by pain.  During the October 2004 MEB examinations (recorded on DD Forms 2807 and 2808), 8 months prior to separation, the CI reported constant pain and spasm, and “significant” loss of ROM.  The 3 October 2004 commander’s statement documented an obvious limp despite “regular use of a cane to walk,” and that the CI appeared to be in “considerable pain nearly constantly.”  The CI was also observed to “frequently alternate between sitting and standing” which reduced productivity, concentration, and work efficiency.  The 14 January 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of constant pain that was worse with activity, lifting, sitting and standing for prolonged periods.  The physical examination showed a limp that “favored the right foot” and a forward flexion of 60 degrees with pain.  There was normal strength, sensation, and reflexes of the lower extremities with no evidence of muscular atrophy.  Provocative testing for nerve root impingement was negative.  

At the 5 July 2005 VA Compensation and Pension (C&P) evaluation, 1 month after separation, the CI reported regular use of a cane, daily ache, tingling, and radiation of pain to the lower extremities, left greater than right.  He denied weakness, numbness, flare ups, or falls.  He reported missing 1-2 days of work out of every month over the prior year, but denied incapacitating episodes.  Physical examination showed use of a cane with an antalgic gait.  There was tenderness of the spine, with normal curvature, and no evidence of muscle spasms.  Forward flexion was to 70 degrees with discomfort and repetition was not attempted due to complaints of pain.  Tests of strength, sensation, and reflexes were normal.  The examiner diagnosed “multilevel DDD with left sensory radiculitis…resulting in mild to moderate functional impairment.”  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated 10% for the back condition, coded 5243 (intervertebral disc syndrome), citing a forward flexion of 65 degrees with no evidence of radiculopathy.  The VA also rated 10% for the back condition, but coded 5242 (degenerative arthritis of the spine), based on the July 2005 C&P examination, citing a combined ROM limited to 160 degrees, flexion limited to 70 degrees, and antalgic gait without muscle spasm.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) as reported on the VA examination, which was most proximate to separation.  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 in the year prior to separation to warrant consideration of rating under that alternate VASRD formula.  While the CI may have experienced radiating sensory disturbance or pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The panel therefore concluded that an additional disability rating was not justified on this basis.  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.  

Chronic Ankle and Foot Pain.  The PEB combined the bilateral foot and ankle conditions as a single unfitting condition coded 5279 (metatarsalgia) rated 10%.  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.  Additionally, the 5279 metatarsaglia code used by the PEB is listed in the VASRD as appropriate for either unitlateral or bilateral conditions.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining two bilateral (i.e., the bilateral foot and the bilateral ankle) conditions under a single rating was justified in lieu of separate ratings, followed by determining whether combining the particular conditions of each ankle (left and right), and then each foot (left and right) was appropriate, as applicable.  When considering separate ratings for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the conditions are not separately unfitting, or a bilateral code most appropriately describes the condition, or 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 right and left foot and ankle conditions are presented with attendant recommendations regarding separate unfitness, followed by separate ratings if indicated.  

According to the STR and the MEB NARSUM, the foot and ankle condition began in September 2001 with training runs.  Radiographic studies in September 2002 documented injury to the bilateral heels (at the posterior calcaneal bones near the Achilles tendons).  Further imaging in April 2003 and October 2004 documented bilateral bone spurs and calcifications of the same area (Haglund deformity).  During the October 2004 MEB examinations the CI reported constant pain worsened by walking and loss of ROM.  The foot examination was recorded as normal.  At a podiatry visit in October 2004, the CI reported bilateral ankle stiffness, with pain in the arches, forefeet, and posterior heels that was worse in the morning and with ambulation.  Physical examination revealed tenderness of the bilateral posterior heels and with squeezing the calcaneal bones.  There were callosities of the bilateral forefeet (at the 2nd, 3rd, and 4th metatarsals) and an ankle range of motion (ROM) that was “decreased by 5 degrees.”  The examiner diagnosed “insertional Achilles calcific tendonitis, ankle equinus, and anterior metatarsalgia,” all as bilateral conditions, and suggested potential surgical intervention (“guarded prognosis” that would require “correction of equinus and possible resection of [calcifications]”).  The 3 October 2004 commander’s statement did not make specific reference to the bilateral foot or ankle conditions, instead directly implicating another condition (low back pain) as impacting duty performance.  The 14 January 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of constant pain worsened by increased activity such as walking, running, jumping, climbing and prolonged standing.  Examination was recorded as similar to the October 2004 podiatry findings.  The permanent physical profile (recorded on DA Form 3349) dated 15 February 2005 listed bilateral foot pain as limiting military duties, but did not make reference to the ankles.

At the 5 July 2005 C&P evaluation the CI reported that inserts seemed to help, though there was recurrent swelling after prolonged standing, and easy fatigability.  The physical examination showed “near complete deformation of the mid foot with only partial reformation upon unloading,” and normal appearing mid- and hind-foot architecture with normal Achilles tendon alignment.  There was tenderness at the Achilles tendon insertion bilaterally and pain with manipulation of the bilateral feet.  The CI was reluctant to stand on the left foot, citing “instability.”  

The panel first considered the fitness recommendation for bilateral foot pain and bilateral ankle pain, from the perspective of potentially unbundling the foot and ankle conditions from each other.  The panel noted the physical profile listed bilateral foot pain, but not bilateral ankle pain.  The panel also noted that the commander’s statement directly implicated one particular condition, low back pain, as impacting fitness to perform duties, but did not identify either foot or ankle pain.  The MEB did list “bilateral ankle and feet pain” as failing retention standards.  Considering this performance-based evidence, a panel majority determined that a recommendation for a separately unfitting bilateral ankle condition could not be justified.

Next, the panel focused on the fitness aspect of the bilateral foot pain for each individual foot.  Again, the commander’s statement implicated low back pain, not the foot condition, and both the permanent profile and MEB listed “bilateral foot pain.”  As noted above, the metatarsalgia VASRD code (5279) used by the PEB is listed as appropriate for either unilateral or bilateral foot conditions, provided that the coding choice best approximates the disability compared to other codes.  A panel majority determined that this level of performance-based evidence constituted a preponderance sufficient to recommend no change in the fitness determination made by the PEB that the foot pain was best characterized as a bilateral condition, rather than separately unfitting foot conditions. 

The panel lastly considered the rating for the bilateral foot disability based on the above evidence.  As described above, the PEB rated the condition (which the PEB called chronic bilateral foot and ankle pain) at 10%, coded 5279 (anterior metatarsalgia), citing pain with forefoot movement and metatarsus tenderness.  The VA also rated the bilateral condition at 10%, but used the 5024-5279 (tenosynovitis – anterior metatarsalgia), based on the July 2005 C&P examination.  There is no higher rating under 5279, which is a bilateral code, and there was no other appropriate bilateral foot code that offered a route to a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the bilateral ankle and foot condition.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  In the matter of the bilateral ankle and foot condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent recommended increasing the rating to 20% for each of these conditions but did not submit a minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  The panel, 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 20150708, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170010106 , XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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,