RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01113
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20041219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E7, Human Resources Specialist, medically separated for “chronic bilateral foot pain secondary to bilateral hallux valgus” with a disability rating of 10%.   

CI CONTENTION:  “Review of all conditions.”  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 - 20040909	VARD - 20050218	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Foot Pain…	5279	10%	Bilateral Pes Planus With Plantar Fasciitis	5276	0%	20041124	
			Right Big Toe Hallux Valgus with Cold Bunion 	5280	10%	20041124	
			Left Big Toe Hallux Valgus with Cold Bunion	5280	10%	20041124	
Recurrent Low Back Pain 	Not Unfitting	Lumbar Spine DDD, L4-L5-S1	5243	10%	20041124	
Recurrent Knee Pain	
Not Unfitting	Right Knee Retropatellar Pain Syndrome	5099-5014	10%	20041124	
		Left Knee Retropatellar Pain Syndrome	5099-5014	10%	20041124	
Fascial Defect Left Anterior Compartment 	Not Unfitting
	Left Lower Leg Compartment Fascial Defect	7805	NSC	20041124	
Facial Dermatitis 	Not Unfitting	Facial Contact Dermatitis	7806	NSC	20041124	
Recurrent Right Wrist Pain	Not Unfitting	Right Wrist Disability	5299-5215	NSC	20041124	
Occasionally Symptomatic Hemorrhoids	Not Unfitting	Hemorrhoids	7336	0%	20041124	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Bilateral Foot Pain.  The PEB combined the bilateral foot pain conditions as a single unfitting condition coded 5279 (metatarsalgia, anterior (Morton’s disease), unilateral, or bilateral) and 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.  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 foot pain condition is presented with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral foot pain condition began in May 2003 after running.  Surgery was recommended several times but declined.  Despite conservative treatment with a trial of wider boots and custom orthotics, the CI’s foot pain continued.  The 22 June 2004 MEB NARSUM examination, 5 months prior to separation, noted the CI was unable to tolerate prolonged standing and weight-bearing activities.  Physical examination showed tenderness over the first metatarsophalangeal joints (big toes) of both feet, with valgus deviations measured at 25 degrees on the right and 38 degrees on the left, and an exostosis (bony outgrowth) on the left.  Active range of motion (ROM) measurements of the big toes in degrees were: dorsiflexion to 12 (right) and 15 (left), and plantar flexion to 32 (right) and 5 (left).  Pain precluded full cooperation with the examination.  

At the 24 November 2004 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported pain when moving the big toes “up and down too much.”  Physical examination of the feet showed pes planus with a component of plantar fasciitis.  There was no metatarsalgia, claw toe or hammertoe; and no nodules or contractures.  Hallux valgus deviation was 30 degrees on the right and 25 degrees on the left “with cold bunion.”  Bilateral big toe ROM measurements were flexion to 15 degrees and extension to 20 degrees.  Repetitive testing and pain rated at 3/10 caused a decrease in flexion to 10 degrees and extension to 15 degrees.

The panel first considered whether each foot, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The CI was profiled for his feet and they were also implicated in the commander’s statement.  There was performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  Panel members agreed, therefore, that the left and right foot pain conditions were reasonably justified as separately unfitting and that each met VASRD §4.71a criteria for a separate rating.  Accordingly, each should be afforded a separate disability rating.  
 
The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral foot pain condition 10%, coded 5279 (anterior metatarsalgia (Morton’s disease), unilateral, or bilateral).  The VA rated the bilateral pes planus 0%, coded 5276, (acquired flatfoot), and rated the right and left hallux valgus conditions 10% each, coded 5280 (hallux valgus), based on the C&P examination 1 month before separation, and citing mild symptoms relieved by built-up shoe or arch support.  Upon deliberation, members agreed there was no limitation of dorsiflexion or plantar flexion of either foot that supported a rating under the VASRD diagnostic code for limitation of motion (5271).  There was no bilateral foot weakness which supported a rating under the diagnostic codes for weak foot (5277).  There was no evidence of claw foot (5278) of acquired flatfoot (5276), hallux rigidus (5281), or Morton’s disease.  There was no tarsal or metatarsal bone malunion or nonunion (5283), or other foot injuries (5284) to support a moderate rating under their respective diagnostic codes.  While bilateral hallux valgus (5280) was clearly present in each foot, there was no history of either being operated on with resection of metatarsal head or the condition being severe and equivalent to amputation of great toe to justify a 10% rating for either.  There was no evidence of an ongoing abnormality with propulsion thrust in walking that could be analogously coded under 5399-5310 (muscle group X: movements of forefoot and toes) for a 10% rating.  There was no other VASRD §4.71a route to a higher rating under any applicable code for either foot.  However, there was evidence of painful motion in both feet causing functional loss supporting the 10% rating for each (based on §4.40, §4.45 and §4.59).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the left foot pain condition, and 10% for the right foot pain condition analogously coded 5099-5003 (arthritis, degenerative).  

Contended PEB Condition:  Recurrent Low Back Pain (LBP):  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The condition was implicated in the commander’s statement but not profiled or judged to fail retention standards.  According to the STR, the CI’s recurrent LBP condition began in March 2004 without any specific injury or trauma.  Magnetic resonance imaging (MRI) studies showed degenerative disc disease (DDD) with bulging intervertebral discs at L4-5, and L5-S1 and impingement on the right and left L4-5 and L5-S1 spinal nerve roots.  Electrodiagnostic studies on 6 October 2004 were negative for radiculopathy.  During a 22 November 2004 orthopedic examination, 1 month prior to separation, the CI reported midline LBP without radiation.  Physical examination showed a lumbar flexion ROM of 90 degrees (normal) and extension of 20 degrees (normal 30).  The examiner assessed “MLBP” with mild L-spine degenerative joint disease.  

At the 24 November 2004 C&P evaluation the CI reported lumbar pain that “comes and goes.”  Physical examination showed lumbar spine stiffness and pain rated at 2/10 with no spasms. Thoracolumbar flexion was 0-80 degrees, extension 0-30 degrees, lateral bending 0-30 degrees and the rotation bilaterally of 0-45 degrees.  But with the Deluca testing on the fourth and the fifth trials, flexion decreased to 70 degrees, extension to 20 degrees, lateral bending 20 degrees and rotation bilaterally remained the same.  There was no evidence of any sciatica.  

Upon deliberation, the panel majority agreed there was performance-based evidence from the record that the LBP condition significantly interfered with the CI’s satisfactory duty performance at separation.  Placing greater probative value on the more thorough C&P examination, the panel majority agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees), as reported on the  VA examination proximate to separation.  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.  After due deliberation, the panel majority agreed that the preponderance of the evidence with regard to the functional impairment of the recurrent low back pain condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately analogously coded 5099-5003 (arthritis, degenerative), and meets the VASRD §4.71a criteria for a 10% rating.  

Contended PEB Conditions:  Recurrent Knee Pain, Fascial Defect Left Anterior Compartment, Facial Dermatitis, Recurrent Right Wrist Pain, and Occasionally Symptomatic Hemorrhoids.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  All of the conditions were profiled, and while and the knees and left anterior compartment fascial defect conditions were implicated in the commander’s statement, none were judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the above contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the bilateral foot pain condition, the panel unanimously recommends a disability rating of 10% for the left foot and 10% for the right foot, each coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended LBP condition, the panel majority agrees that it was unfitting and recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended recurrent knee pain, fascial defect left anterior compartment, facial dermatitis, recurrent right wrist pain and occasionally symptomatic hemorrhoid conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  The single voter for dissent recommends no change for the LBP condition and submitted the appended minority opinion.  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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Foot Pain	5099-5003	10%	
Right Foot Pain	5099-5003	10%	
Recurrent Low Back Pain	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160925, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

Minority Opinion

I submit this minority opinion to support my contention that the CI’s low back pain condition was not unfitting and therefore should not have been rated as was done by the majority of this panel.  My argument is that the evidence required for the panel to recommend that the CI’s back condition be considered and rated as unfitting did not rise to the level required of the PDBR which is a “preponderance” of evidence.  When considering the fitness determination we are required to find that the record shows a preponderance of evidence which is defined in the DoDI 1332.39 (14 November 1996) E1.1.26. or DoDI 1332.38 (14 November 1996 incorporating change1, 10 July 2006) E2.1.26 as:  

Preponderance of Evidence.
That evidence that tends to prove one side of a disputed fact by outweighing the evidence on the other side (that is, more than 50 percent).  Preponderance does not necessarily mean a greater number of witnesses or a greater mass of evidence; rather, preponderance means a superiority of evidence on one side or the other of a disputed fact. It is a term that refers to the quality, rather than the quantity of the evidence.

Using this definition as my guide, I find that there was not a preponderance of evidence present.  Specifically, while the commander did note the “lower back” condition on the commander’s performance statement dated 21 June 2004, she noted it along with several conditions, all of which the MEB found to meet retention standards.  In other words, the low back condition was not singled out as a single condition that was specifically noted to cause the CI problems in performing the duties required of her MOS.  In fact the commander specifically stated:

“Though the ongoing chronic condition associated with her feet, lower back, knees, lower left leg and thumb disorder did not directly affect her duty performance in an admin environment or her ability to perform tasks required of her MOS, it has impacted her ability to conduction physical training and soldier common tasks in a field environment”.  

Additionally the CI’s lower back condition was never listed on the Army DA Form 3349 Physical Profile form.  The only condition ever listed on her profile was “chronic bilateral foot pain (bunion and plantar fasciitis)” for which she was found to be unfitting and medically separated.  As noted above the MEB reviewed the evidence and found the condition to “meet retention standards.”

Finally, I note that the physician that authored her MEB NARSUM noted under the “Physical Examination” section “…also incidentally noted was a normal knee examination, pes planus, and tenderness to pressure at the lumbosacral junction with a normal spine range of motion.”  In my judgement, if the low back pain condition was judged to be an “incidental finding” during her MEB examination, it did not rise to the level where it was a major consideration in her inability to perform in her MOS or as a Solider.  

AR20180001381, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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 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 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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

Sincerely,					      
Enclosure