RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01306
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040428

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Petroleum Supply Specialist, medically separated for “chronic subjective low back pain” and “bilateral bunions,” rated at 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “Review 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 - 20040312	VARD - 20040917	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5237	10%	Low Back Strain	5237	20%	20040802	
Bilateral Bunions	5280	10%	Bilateral Plantar Fasciitis with Fifth Metatarsal Bunion and Osteoarthritis First Metatarsal Phalangeal Joints	5010	10%	20040802	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in January 2003 while undergoing field training exercises in preparation for deployment.  The CI was seen several more times over the next few months and was found to have normal range of motion (ROM) at each evaluation.  In September 2003 he was on a work detail moving tables and re-injured his back.  X-rays completed on 24 October 2003 revealed minimal degenerative joint changes.  During the same period, the CI was on medications and light duty for his foot condition (below).  He was entered into the MEB process for the feet in October 2003.  In primary care on 7 November 2003, the CI could forward flex to place his hands at the knees.  At the orthopedic clinic appointment on 19 November 2003, the CI reported back pain that radiated into his posterior right thigh.  The examiner noted the CI exhibited “pain out of proportion,” as well as two other signs of non-organic pain (distraction and compression).  The ROM measurements were flexion to 10 degrees (90 normal), extension to 10 degrees (30 normal) and side bending to 10 degrees (30 normal).  Motor strength and reflexes were normal.  The orthopedist noted “I do not feel the back is a Boardable condition + suspect malingering.”  The same day in physical therapy the CI was noted to have excessively decreased flexibility for trunk forward flexion and extension while standing, but to be able to bend forward while seated.  Excessive pain with movements was recorded.  In internal medicine the next day the CI was noted to have impaired ROM due to voluntary guarding.  

During the 14 November 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported chronic lower back pain.  The physical examination noted pain with all movements in the right latissimus dorsi-region and one sign of non-organic pain.  The neurological evaluation was normal.  An MRI on 22 November 2003 showed multilevel degenerative disc disease (DDD) with right S1 nerve root displacement.  Electrodiagnostic testing on 7 January 2004, to evaluate for right lower extremity radiculopathy, was normal.  

At the 29 January 2004 MEB NARSUM examination , 3 months prior to separation, the CI reported that he injured his back in January 2003 during field training prior to deployment and re-injured it in August 2003 while moving tables.  Conservative treatment had not been successful.  The physical examination showed pain with all movements in terms of the back, including the right latissimus dorsi region.  The neurologic examination was normal.  At the 2 February 2004 ROM examination, 3 months before separation, thoracic flexion was 15 degrees (90 normal), extension was 10 degrees (30 normal), right and left rotation were both 25 degrees (30 normal) right lateral bending was 10 degrees (30 normal) and left lateral bending was 20 degrees (30 normal).  The measurements were noted to be thoracic measurements and not thoracolumbar measurement.  It was also noted that the CI could bring his fingertips to 3 cm (a little over an inch) below his knees.  The medical officer observed that this represented flexion greater than 60 degrees.  

At the 2 August 2004 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported he was a supervisor in the Federal Corrections Department as of 5 July 2004 and had not lost any time from work due to his back pain.  He denied receiving any treatment for his back since his release from active duty in April.  The CI complained of both sharp and dull constant pain and reported five episodes of incapacitating back pain in the last year that required approximately one day of bed rest.  Physical examination showed moderate lumbar paraspinal muscle spasm from L4 to S1 with pain to palpation of the L5 to S1 interspace.  Motor and sensory testing were both normal.  Normal heel/toe gait mechanics were noted.  The ROM recorded flexion as 40/70 degrees and a combined ROM of 160/220 degrees.  It is not clear if this represents active/passive motion, onset of pain/limit of motion, or motion/normal range.  Repetitive use increased pain and spasticity but there was no additional loss of motion.  The neurological evaluation was normal and atrophy absent.  A mildly antalgic gait was felt to be due to the foot condition and not the back.  

In physical therapy on 16 November 2004, 7 months after separation, the CI was noted to have mild limitations in trunk motion.  The paraspinal muscles were tender but spasm was not present.  There were no additional records in evidence within 12 months of separation which addressed the back condition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5237 (lumbar spine strain), citing thoracolumbar ROM limited by pain with localized tenderness.  The VA rated the back condition 20%, coded 5237, based on the C&P examination 3 months after separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

The panel noted the 2 February 2004 ROM examination provided ROM values for the thoracic spine and not the thoracolumbar spine specified by the VASRD (§4.71a, Plate V).  However, it was also noted that the CI was able to forward flex sufficiently to touch 3 cm below his knees.  The VA examination noted two values for each measurement, but it is not clear from the report what these represent.  Accordingly, the probative value of both the NARSUM and VA examinations is reduced.  Prior to entry into the MEB process, the CI was noted to have a normal ROM at multiple examinations.  Following separation, the CI was noted to have minimal limitations in motion at a physical therapy evaluation.  After due deliberation, considering all of 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 back condition.  

Bilateral Bunions.  The PEB combined the right foot and the left foot bunions as a single unfitting condition coded 5280 (hallux valgus, unilateral) 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 or implied adjudication that each condition was separately unfitting.  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 CI was noted to have bilateral bunions prior to activation, but experienced increasing foot pain after deployment from walking and running.  He was administratively returned back to the States in August 2003 for possible surgery.  He was issued a profile for a shoe of comfort, but had persistent pain.  In podiatry on 28 August 2003, he was found to have bilateral bunionettes.  Possible secondary gain was a concern.  He was referred to physical therapy where left greater than right plantar fasciitis was diagnosed.  A bone scan on 12 September 2003 (the actual report is not in evidence) was recorded as being consistent with mild overuse changes.  It was not consistent with plantar fasciitis, stress fractures, or bilateral bunionette injury.  It was determined that the CI might benefit from elective surgery, but that this was a pre-existing condition and that it was unlikely that he would be able to return to full duty after recovery from the surgery.  X-rays of the left foot on 3 November 2003 showed a small spur of a heel bone, but were otherwise unremarkable.  

During the MEB examination the CI was found to have bilateral pain over the great toe and little toe at the joints between the toes and the foot.  The MEB NARSUM examination recorded bilateral foot pain.  The CI wore tennis shoes and used a cane.  The examination referenced the MEB evaluation from November.  

At the C&P evaluation, the CI reported that he had not lost any work time due to his feet.  There was full ROM in the great through fifth toe on both feet, but the left was more symptomatic than the right.  On examination, he had normal gait mechanics without an assistive device.  However, after placement on a treadmill, he did demonstrate a mildly antalgic gait.  He did not use an arch support and the shoes did not show abnormal wear.  He had pain to palpation of both insteps and along the rays of the little toes.  Otherwise the examination of the feet was unremarkable.    X-rays showed early degenerative arthritis of the great toes and bilateral bunions of the little toes.  Spurs were noted of the heel bones bilaterally.  He was thought to have bilateral plantar fasciitis with bunions and arthritis as described.  

The panel observed that the CI had surgery of the left foot on 5 October 2005, over 17 months after separation.  He did not have surgery of the right foot.  The panel first considered if each foot was separately unfitting.  The profile issued 2 February 2004 was for both feet.  The MEB found both feet medically unacceptable.  The CI was seen for both feet at all appointment although the left was consistently more symptomatic.  The evidence supported a determination that each foot was separately unfitting.  The panel then directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral bunions condition 10%, coded 5280 (hallux valgus, unilateral), citing constant pain and rating IAW DODI 1332.28.E2.1.32.  The VA rated the bilateral plantar fasciitis with fifth metatarsal bunion and osteoarthritis first metatarsal phalangeal joints condition 10%, coded 5010, (arthritis due to trauma), based on the C&P examination 3 months after separation, citing “painful or limited motion of a major joint or group of minor joints, and may also be applied once to multiple joints if there is not limited or painful motion.”  The panel noted that the CI actually had bunionettes or tailors bunions which involve the little toes, not hallux valgus which is a bunion of the great toe.  The VASRD provides codes 5283 for malunion of the metatarsal bones or 5284 for other foot injuries.  Both support a 10% rating for a moderate impairment which was present for the left foot, but not the right.  This provided a 10% rating for both feet which provided no advantage to the CI.  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 foot condition.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral bunion 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.  Therefore, the panel recommends 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 20161004, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record  

AR20180001947, 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