RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

NAME: XXXXXXXXXXXXXXXXX	CASE:  PD-2016-00070-2
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20031222

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Food Service Specialist, medically separated for “low back pain” and “bilateral shin splints,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  “Bilateral foot pain” was determined to have existed prior to service (EPTS) and was not rated.  This case was originally evaluated by the PDBR and resulted in a unanimous decision to re-characterize the disability rating to a combined 20%, rating the low back 10%, bilateral shin splints 0%, right foot pain 10% and left foot pain 0%.  In the matter of the right hip condition, the Board recommended no change from the PEB determination as not unfitting.  The Secretary of the Army’s Designated Decision Authority accepted the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  The CI disagreed with the determination and appealed to the United States District Court of the appropriate jurisdiction.  The Court granted the parties’ joint motion for remand and stay of proceedings.  The case was remanded to the Army Review Boards Agency, which referred the case back to the PDBR for reconsideration of the disability rating.  The complete case file, to include additional documentation provided by counsel representing the CI, was evaluated by a new PDBR panel comprised of different members.  These proceedings reflect a de novo review and analysis confined to the appropriate resolution of the low back, bilateral shin, bilateral feet and right hip conditions.  

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in April 2001 after she slipped and fell on her back while carrying a heavy pan at work.  She was pregnant at the time, so no X-rays were performed.  

During the 22 November 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 13 months prior to separation, the PE revealed tenderness over the right L4-L5 region.  The 27 November MEB NARSUM examination recorded complaints of LBP, and the physical examination (PE) revealed tenderness over the right paravertebral L4-L5 level and a normal gait.  Spine ROM testing showed normal flexion to 90 degrees (fingers within 5 inches of the floor) and a combined ROM of 220 degrees (normal 240).  Sensation was intact and bilateral LE strength was 5/5.  The examiner determined the CI failed to meet retention standards due to low back pain.  A bone scan in December 2002 showed no lumbar spine abnormalities. 

At a 3 January 2003 physical medicine and rehabilitation examination, 12 months before separation, the CI reported constant LBP with flare-ups that radiated to the inner thigh.  There was no LE weakness or bowel/bladder problems.  Spine X-rays on 24 January 2003 were normal.  

On 27 July 2003, 5 months prior to separation, the CI sought emergency room (ER) treatment for LBP, and when she returned on 7 August 2003 with complaints of sciatica and LBP, she was given 2 days off from work.  On 22 August 2003, she presented to the ER again, and primary care was consulted for sudden right LE weakness and paresthesias (pins and needles sensation).  A lumbar MRI showed no change from the May 2001 MRI findings.  The CI was admitted to the hospital on the same day, and during a neurology consult, she reported right LE paresis (muscle weakness) and paresthesias along with LBP.  She stated she was recently involved in a motor vehicle accident while riding as a passenger, and was hit from the rear.   The PE showed marked lumbar and sacral paraspinal muscle tenderness, but normal tone and strength, except for the right LE, where there was profound paresis to confrontational testing of the entire leg.  The CI was able to ambulate with a walker and moved her right LE in an “exaggerated” pattern, but during other parts of the examination, she was able to move the right LE to reposition it or to assist her in maintaining balance.  The neurologist’s clinical assessment noted “so many physiological contradictions that it justifies a suspicion of a psychogenic etiology.”  He also recommended that the CI needed “reassurance of her good health and a firm expectation of improvement.”  

At the 9 July 2004 VA Compensation and Pension (C&P) general medical examination, 7 months after separation, the examiner stated “history and physical was quite difficult to obtain due to the patient’s evasiveness, frustration, anger and silence with being associated with the military and VA system at all.  Her answers were brief and terse.”  The examiner noted the CI had a “slow gait” and was “not willing to cooperate with many other ROMs because she says she just cannot perform them and will not try.”  She reported chronic LBP from a fall that was followed by her military tactical vehicle being rear ended while she was a passenger.  The examiner documented spine flexion to 10 degrees and combined ROM of 75 degrees, stating the CI refused to go any further due to pain.  Strength was graded 3/5 (able to move against gravity but not resistance), and the assessment was chronic LBP due to spasm, sprain, and strain.  The examiner added “she refuses to go any further because she says that it is painful even if I try to help her with assistance, there is some resistance.  Excursion 1/5, speed 1/5, strength 3/5 and is coordination 2/5.”  Lumbar spine X-rays on 9 July 2004 reported no significant abnormalities.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10% under the Veterans’ Administration Schedule for Rating Disabilities (VASRD) spine rules that were in effect at the time of the PEB adjudication, analogously coded 5295 (lumbosacral strain), citing no neurological signs.  The VA rated the low back condition 40% under the current VASRD spine rules, coded 5237 (lumbosacral strain), based on the VA C&P examination, citing marked painful thoracolumbar spine limited motion with forward flexion to 10 degrees, extension to 5 degrees, lateral flexion to 10 degrees, and lateral rotation to 20 degrees, with no significant abnormalities on lumbar spine X-rays.  The VASRD spine rating rules changed on 26 September 2003, between the date of PEB adjudication and the date of the CI’s separation from the military, and thus the panel adjudicated the case based on the VASRD in effect on the date of separation.

Panel members first considered the disparity between the low back ROM recorded at the NARSUM and the VA examinations.  The VASRD, in addition to individual diagnostic codes, includes general policies for rating and quality of evidence.  General rating policies include §4.3 (reasonable doubt), §4.6 (evaluation of evidence), §4.7 (higher of two evaluations, and §4.10 (functional impairment), and for the musculoskeletal system, policies includes §4.31 (a no-percent rating), §4.40 (functional loss), §4.45 (the joints), §4.46 (accurate measurement), §4.59 (painful motion), and §4.70 (inadequate examination), as well as other policies that the panel believes are less pertinent to this case.  The enumerated policies, when taken together, present the structure of the rating process, which is based on a foundation of valid examinations containing specified medical evidence.  

The panel noted that the VA examiner described the CI as “not willing to cooperate” with ROM testing and also indicated she would not “go any further because she says that it is painful even if I try to help her with assistance, there is some resistance.”  While neither the MEB NARSUM nor the VA examinations documented ROM measured by goniometer (as stipulated by the VASRD), performed repetitive ROM testing (which may increase or decrease ROM achieved), or provided an estimate of impairment due to flare-ups, the MEB NARSUM examination took place while the prior rules for rating the spine were in effect and were not reliant on quantitative ROM for rating.  The MEB NARSUM was also consistent with the total medical evidence in the STR.  The VA examiner made clear that the CI was not cooperative to a full back examination as needed for permanent disability rating IAW current VASRD rating guidelines, and raised significant doubt for the panel regarding the validity of the examination findings.  Panel members also noted that after PEB completion, but prior to separation, the CI was admitted as an inpatient for further evaluation of reported new onset right LE weakness.  However, the neurologist also cast doubt on the validity and reproducibility of the PE at that time, stating that the presence of “so many physiological contradictions” and recommended the CI would benefit from “reassurance of good health.”  The lumbar MRI performed 4 months prior to separation indicated no significant changes from the previous MRI, and X-rays at the VA examination were normal.  According to VASRD §4.3, when all procurable and assembled data leaves reasonable doubt, the doubt should be resolved in favor of the CI; however, §4.6 says “every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just.”  Taken together these VA policies support the panel’s determination that reasonable doubt is not raised by evidence of poor quality.  The VA rating policy is consistent with providing a rating based on the preponderance and quality of evidence in the treatment record over the evidence at any single examination.  

Based on the above, panel members placed more probative value on the STR and MEB NARSUM evidence than the VA examination for its rating recommendation.  The panel agreed that a 10% rating, but no higher, is supported for tenderness and/or combined ROM (greater than 120 degrees but not greater than 235 degrees).   There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was also no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration under the alternate VASRD formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the low back condition, coded 5243 (intervertebral disc syndrome), the VASRD spine code used for degenerative disc disease.  

Bilateral Shin Splints.  According to the STR and MEB NARSUM, the CI first complained of bilateral shin splint pain for over a month at a primary care visit in May 2002.  Foot dorsiflexion was   painful at the time, and X-rays showed stress reactive bone changes in both tibial shafts.  The CI was placed on a profile to run or walk at her own pace, and was concomitantly evaluated by a podiatrist for dual complaints of foot pain and shin pain, and subsequently treated with orthotics.  

During the MEB examination, the PE showed normal LE findings except for a right big toe bunion.  The MEB NARSUM documented multiple medical complaints including recurring shin pain.  According to the examiner, in October 2002, the CI complained of shin and back pain and was given a P3 profile for shin splints and foot pain, but “since she was already on a P2 profile for her right hip and needed a profile for her back pain, these conditions were all combined on her P3 profile.”  The PE cited general findings and specialty examinations, none of which addressed the shins. Bilateral knee flexion was to 160 degrees (normal 140) and extension to 0 degrees (normal), with no mention of painful motion; ankle ROM was not documented.  The examiner determined the CI failed to meet retention standards due to shin splints.  A bone scan was performed in December 2002 and showed no bilateral leg or feet abnormalities.  A new P3 profile for the shins, back, right hips and feet was issued in February 2003.  

At the VA C&P examination, the CI reported bilateral shin splints due to many years of running, and that she could no longer walk more than 25-30 minutes or stand more than 15 minutes. The PE showed “some slight tenderness to deep palpation” of the bilateral shins, but there were no bony deformities or step-offs, and sensation and reflexes were intact.  Ankle ROM was normal bilaterally and knee ROM showed flexion to 30 degrees and extension to 5 degrees (normal 0).  She was unable to do a squat and rated her pain at 7/10.   Gait was “slow” but normal, and she stated that heel and toe walking caused pain in both feet.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral shin splints 0%, analogously coded 5099-5022 (periostitis).  The VA rated the bilateral shin splints 10%, coded 5022, based on the C&P examination, citing objective evidence of bilateral shin tenderness to deep palpation and subjective complaints of inability to walk more than 25 minutes or stand more than 15 minutes.  

The panel first considered whether the right and left shin conditions, having been de-coupled from the combined PEB adjudication, each remained separately unfitting.  Panel members agreed the evidence reasonably justified that the functional limitations of each condition contributed to the CI’s inability to perform military duties, and accordingly a separate disability rating is recommended for each shin condition.  The VASRD §4.71a (musculoskeletal system) states that “diagnostic codes 5013 through 5024 will be based on limitation of motion, as arthritis, degenerative (with the exception of gout, code 5017)” and “the 20 percent and 10 percent ratings based on X-ray findings [for 2 or more major joints or minor joint groups] will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive.”  Therefore a bilateral rating for shin splints is not supported by code 5022.  

The 9 July 2004 VA C&P general medical examination included all referred conditions, and thus the panel held the same concern for unreliability of findings for the shin splints based on the examiner’s comments about the CI’s unwillingness to cooperate with overall ROM testing.  Panel members placed greater probative value on the STR and MEB NARSUM examinations, and agreed the ratings should be the same because the evidence for the right and left shin splints was essentially identical.   The panel noted that code 5003 (and related code 5022) requires limitation of [joint] motion supported by objective findings for individual 10% ratings, however, the MEB NARSUM examination did not record limited or painful knee or ankle motion.  Therefore, no higher than a 0% rating was warranted under code 5022 for either shin condition.   The panel next considered an analogous rating under 5262 (tibia-fibula impairment), which is based on the degree of knee or ankle disability and described qualitatively as slight, moderate, or marked; however, but there was no evidence of knee or ankle disability documented in the STR or MEB NARSUM.  Regarding the contention of painful motion of adjacent joints (knees, ankles) as a basis for rating, §4.59 states it is the intention to provide the minimum compensable rating for joints with painful motion supported by observations such as facial wincing, muscle spasm, or the presence of arthritis on imaging as examples of objective evidence which supports a subjective complaint of pain with motion.  The CI reported bilateral shin pain with use, but there was no documentation of knee or ankle painful motion in the STR within 12 months prior to separation.  There was therefore no higher than a 0% rating supported for the right or left shin condition under any applicable VASRD code. 

After unbundling the conditions, the 0% rating recommendations for each shin provided no ratings benefit to the CI; therefore, no change to the PEB combined adjudication is recommended.  The panel noted that a 0% rating for a condition found to be unfitting and ratable by the Service is not inconsistent with the VASRD.  According to §4.31, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the bilateral shin condition.  

Contended PEB Condition:  Bilateral Foot Pain.  The PEB determined the EPTS bilateral foot condition was not service aggravated.  While the panel has no authority to change an EPTS determination by the PEB, it may consider whether or not there was evidence of service aggravation.  A presumption of service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  There was no evidence of foot symptoms or findings in the CI’s military enlistment physical, but STR notes clearly document aggravation of foot pain by military shoe wear and physical activities, including marching.  Additionally, podiatric and orthopedic diagnoses included right foot hallux valgus (HV) bunionectomy and X-ray evidence of mild bilateral pes planus (flatfoot).  The panel concluded the PEB had not overcome the presumption of service aggravation, and thus, the bilateral foot condition was eligible for service rating.  

According to the STR and MEB NARSUM, the CI’s military entrance physical documented no medical issues and annotated normal LE and foot examinations as well as “normal arches of the feet.”  She first complained of a painful right foot bunion in March 2001.  

During the MEB examination, the CI reported bilateral bunion pain (worse on the right), as well as constant foot pain which started when she awoke and put her feet on the floor.  She reported constant swelling with use and especially at end of the day.  The PE revealed a right big toe bunion.  The MEB NARSUM noted the CI was undergoing a MEB for bilateral foot pain.  The PE cited the 6 September 2002 podiatry findings and the examiner documented pain in multiple areas, including the feet, which interfered with the ability to perform in her military specialty.  The examiner determined the CI failed retention standards due to chronic foot pain.  

At an orthopedic visit on 19 December 2002, 12 months prior to separation, the CI reported continued pain over the medial eminence of the right great toe with a mild bunion present.  She underwent a right bunionectomy on 18 February 2003, and at an orthopedic follow-up on 14 July 2003, 5 months before separation, she reported right foot dorsal and plantar pain. The diagnosis was pain and metatarsalgia after HV surgery and orthotics were prescribed.  

At the VA C&P examination, the CI reported swelling and pain along the bottom of her feet after walking or standing.  The pain radiated up the back of the feet to the calves and was worse at the end of the day.  The PE showed no obvious bony deformities or pes planus, but on deep palpation, there was slight plantar foot tenderness.  Bilateral ankle ROM revealed dorsiflexion to 20 degrees (normal) and plantar flexion to 45 degrees (normal).  There was no medial or lateral angulation, and foot X-rays showed mild bilateral pes planus and a mild right first metatarsal deformity.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB determined the bilateral foot conditions existed prior to service without service aggravation and did not provide a rating.  The VA rated the left foot condition 10%, analogously coded 5284 (other foot injury), and the right foot condition 10%, coded 5280 (HV, unilateral), citing tender plantar aspects of the feet, based on the C&P examination.  

The panel first considered whether the right and left foot conditions, having been de-coupled from the combined PEB adjudication, each remained separately unfitting.  Panel members agreed the evidence reasonably justified that the functional limitations of each foot contributed to the CI’s inability to perform her military duties, and accordingly a separate disability rating is recommended for each foot.  Upon considering a rating for the left foot condition, the panel resolved reasonable doubt in favor of a 10% rating utilizing code 5276 (flat feet, acquired).  This was based on the CI’s chronic history of left foot pain with use, pain on manipulation, and the X-ray evidence/diagnosis of acquired flat foot not relieved by orthotics.  The panel considered alternative VASRD foot codes, but all were less applicable and/or not advantageous to rating.  The panel next considered a rating recommendation for the right foot condition, and agreed a 10% rating was supported under code 5280 (HV, unilateral following operation), based on pain following the metatarsal head resection.  While panel members considered a rating under code 5276 based on mild pes planus and metatarsalgia, IAW VASRD §4.14 (avoidance of pyramiding) only one rating can be rendered for the same disability, in this case foot pain. The panel considered alternative VASRD foot an analogous codes, but all were less applicable and/or not advantageous to rating.  After due deliberation, considering all the evidence, the panel concluded the foot conditions were permanently aggravated by service and recommends disability rating as follows: an unfitting left foot condition rated 10%, coded 5276; and an unfitting right foot condition coded 5280, rated 10%, and both IAW VASRD §4.71.

Contended PEB Condition:  Right Hip Pain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended right hip condition was not unfitting.  On 12 March 2003, an L3 profile listed “shin splints, chronic bilateral foot, back pain, and right hip pain.”  On, 30 April 2003, the commander generally stated that due to the CI’s multiple medical problems, associated lost work time, and profile restrictions, she was not performing the duties of her military specialty.  A 20-pound lifting restriction (from previous back profile) was mentioned, but the right hip condition was not specifically implicated in performance impairment.  The commander noted the MEB had been temporarily halted to allow orthopedic evaluation of the hip condition, but when the diagnosis indicated no required surgery, the MEB was reinitiated. 

The CI appealed the MEB findings in a memorandum to the PEB, dated 19 May 2003, and questioned why the her [right] hip condition was combined into the permanent profile, stating “there was no increase of the pain in my r-hip nor did I suggest that the pain in which I had been having was different from when I received the P2 profile.”  The CI expressed her desire to stay in the military and was seeking to go before a medical retention board to change her military specialty.  Throughout the MEB appeal process, the CI reiterated her view that her right hip should not have been combined with the P3 profile.

The panel deliberated the fitness of the right hip condition at length noting that per DoD Instruction (DoDI) 1332.38 (in effect at the time of the CI’s separation), the MEB is charged with providing full medical information for the member’s conditions and determining whether each condition is cause for referral into the disability evaluation system, while the PEB is charged with fitness determinations.  DoDI 1332.38 E3.P1.2.3 explicitly states “MEBs shall not state a conclusion of unfitness because of physical disability, assignment of disability percentage rating, or the appropriate disposition under Chapter 61 of 10 U.S.C.” (DoDI 1332.38 has since been replaced by DoDI 1332.18, but the differing responsibilities of the MEB and PEB remain the same).  In this case, the PEB had access to all the information in the STR and MEB documents, as well as the CI’s MEB appeal in making its fitness determination for the right hip.  The panel must base a recommendation to change the PEB’s not unfitting determination on a preponderance of evidence in record.  Although the right hip condition was combined with three other conditions on the permanent L3 profile, the panel concluded there was not a preponderance of evidence to overcome PEB’s not unfitting determination for the right hip.  The panel’s conclusion is strongly supported by the CI’s own written contention that her right hip condition had not worsened from earlier L2 profile limitations.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of chronic bilateral shin splints and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended bilateral foot condition, which existed prior to service, the panel concluded there was permanent service aggravation and recommends an unfitting left foot condition, rated 10%, coded 5276, and an unfitting right foot condition rated 10%, coded 5280, both IAW VASRD §4.71a.  In the matter of the contended right hip condition, the panel 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 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Mechanical Low Back Pain	5243	10%	
Chronic Bilateral Shin Splints	5099-5022	0%	
Painful Left Foot 	5276	10%	
Painful Right Foot	5280	10%	
COMBINED	30%	

The following documentary evidence was considered:  

AR20210008285

Dear XXXXXXXXXXXXXXXXX

On remand from the U.S. District Court for the District of Columbia, the Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended to re-characterize your separation as a permanent disability retirement with the combined disability rating of 30% 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 permanent 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
	A copy of this decision has also been provided to the Department of Veterans Affairs and a copy of this decision has been provided to the counsel you listed on your application, 
XXXXXXXXXXXXXX