RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00236
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091126

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a reserve E3, Water Purification Specialist, medically separated for “bilateral pes planus” with a disability rating of 10%.  

CI CONTENTION:  “It needs to be changed be the condition has gotten much worse, and it is interfering with employment.”  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 - 20090924	VARD - 20090424	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Pes Planus	5276	10%	Pes Planus	5276	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NSC	

ANALYSIS SUMMARY:  

Bilateral Pes Planus.  The PEB combined the right and left pes planus conditions under a single disability rating, coded 5276 (flatfoot, acquired).  This 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 noted that a bilateral rating is VASRD complaint under 5276 for pes planus (moderate, severe and pronounced pes planus) and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if 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 pes planus 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 bilateral pes planus condition began in June 2006 while in basic training (BT).  During advanced individual training (AIT) the CI sought treatment for bilateral foot pain and was treated with profiles, medications, orthotics, and limited weight bearing.  He used a cane throughout AIT.  At the 15 September 2008 podiatry evaluation, 14 months before separation, the CI reported pain in the arches of both feet with “fallen arches” in the past year.  Bilateral foot and ankle weight bearing X-rays were normal.  The podiatrist indicated that the CI’s bilateral foot condition should have been dealt with as a condition that existed prior to service (EPTS) from BT.  A trial of custom orthotics was recommended with a permanent profile and MEB recommended if they were not helpful.  

The 8 May 2009 permanent profile listed chronic symptomatic bilateral pes planus.  The 19 March 2009 commander’s statement implicated the CI’s profile limitations and use of a cane and soft shoes as impairing the successful performance of the duties of his MOS.  

At the 27 March 2009 MEB podiatry consult, 8 months before separation, the CI’s foot symptoms were unchanged.  The physical examination showed a normal gait and stance.  There was bilateral moderate pes planus with tenderness to palpation (TTP) of both feet.  Foot motion was normal.  Bilateral ankle range of motion (ROM) was normal without weakness or instability.  The assessment was plantar fasciitis and flat foot.  The podiatrist determined that the CI fell below retention standards due to the bilateral foot condition and had a poor prognosis for continued military service.  

During the MEB examination (recorded on DD Forms 2807 and 2808) dated 4 May 2009, 7 months prior to separation, the CI reported bilateral symptomatic pes planus.  The physical examination showed moderate pes planus of the feet with TTP of the heel and arch, without swelling.  There was full ROM of the foot and ankle.  The CI was able to do heel raises bilaterally without pain.  Strength, sensation, and reflexes were normal throughout.  

The MEB NARSUM examination on 4 May 2009, 7 months prior to separation, noted complaints of pain graded 2/10 on the bottom of the feet with standing greater than 30 minutes and walking greater than two miles.  The pain was relieved by stretching and over the counter topical medications.  The physical examination cited the same findings noted at the MEB DD Form 2808 examination summarized above.  The MEB NARSUM examiner determined that despite improvement in the CI’s condition since March 2009, he remained unable to perform the duties of a soldier and did not meet retention standards due to bilateral symptomatic chronic pes planus.  

The CI appealed the findings of the Informal PEB and requested to be found fit for duty.  The 24 September 2009 Formal PEB, 2 months before separation, and the US Army Physical Disability Agency both upheld the PEB’s findings.  In a 13 October 2009 memorandum to the PEB, the CI’s counsel noted that at the [FPEB] hearing there was evidence presented that the CI was able to resume running, jumping, and carrying heavy loads “without pain or symptoms of any sort.”  In its 16 October 2009 response, 1 month before separation, the PEB indicated they had contacted the CI’s Service podiatrist and the podiatrist stated “I know his situation best and strongly advise him not reentering (sic) the military.”  The PEB further indicated that the demands of the CI’s MOS were “far too strenuous to allow retention” based on the immediacy of the CI’s symptoms after entering active duty and the chronicity of the symptoms.  
There was no VA Compensation and Pension (C&P) evaluation in evidence, the CI failed to report to scheduled examinations on 8 April 2009, 19 April 2011, and 1 April 2014.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral pes planus condition 10%, coded 5276 (flatfoot, acquired), citing rated for pain on manipulation and use of the feet, bilaterally.  The VA denied service connection for the bilateral pes planus, citing no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service.  Subsequent VA Rating Decisions in record to 18 March 2016 did not service connect any foot conditions.  

The panel first considered if both the right and left pes planus conditions having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The permanent profile listed the bilateral pes planus conditions and the commander’s statement implicated the bilateral pes planus conditions.  The MEB podiatrist and the MEB NARSUM examiner both determined that the CI fell below retention standards.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that both the right and left pes planus conditions were reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right and left pes planus conditions at the time of separation.

The PEB assigned a 10% rating for the bilateral pes planus under 5276.  The panel reviewed to see if a higher evaluation for either foot or the bilateral feet was supported under any alternative VARSD foot or analogous code.  There was no evidence of severe pes planus of either foot, for higher rating (with marked deformity, swelling on use, characteristic callosities).  There was no evidence of claw foot (5278), or tarsal or metatarsal malunion or nonunion (5283) for consideration of higher rating under these codes.  The MEB podiatry consult, 8 months before separation, noted a normal gait and at the MEB NARSUM examination, 7 months before separation, the CI reported no foot pain at rest and mild pain with weight bearing activities.  The CI reported to the FPEB, 2 months before separation, that he was able to resume impact activities with no “symptoms of any sort.”  The PEB’s unfit determination was upheld because the demands of the CI’s MOS were “far too strenuous to allow retention.”  The evidence proximate to separation did not support characterizing the foot conditions as “moderate” for 10% ratings for the individual feet for “other foot injury” (5284) or coded analogously to Group 10 muscle injuries (5310) IAW VASRD §4.73 (muscle injuries), an analogous code for plantar fasciitis.  Therefore, after having unbundled the bilateral pes planus condition, the highest rating that was supported was 10% for the bilateral pes planus conditions as adjudicated by the PEB.  

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 bilateral pes planus condition.  

BOARD FINDINGS:  In the matter of the bilateral pes planus condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  

The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160418, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	AR20170014144, 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,					      
						      					
Enclosure