RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01432
BRANCH OF SERVICE:  navy 	SEPARATION DATE:  20041215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E6, Storekeeper, medically separated for “degenerative disk disease” with a disability rating of 10%.   

CI CONTENTION:  Request for all conditions considered.  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 – 20041005	VARD - 20060504 and 20061117*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disc Disease 	5243	10%	DDD, L4-L5, L5-S1	5243	20%	20060817*	
Plantar Fasciitis	Cat III	Chronic Bilateral Plantar Fasciitis	5020-5284	20%	20050822	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Degenerative Disk Disease (DDD).  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s DDD of the low back began in early December 2002.  On 9 December 2003 X-rays showed DDD at L5-S1.  On 30 January 2004, an MRI showed DDD at L4-5 and L5-S1 without spinal canal stenosis, with a small left disc herniation causing neuroforaminal narrowing.  At the 25 February 2004 neurosurgery evaluation, the CI reported low back pain (LBP) with three episodes of urinary incontinence, but denied radicular pain.  Physical examination showed full flexion and extension with pain.  Strength and sensation of the lower extremities were normal.  On 8 June 2004, a discogram showed concordant disc-related pain at L5-S1.  The CI was not deemed to be a candidate for intradiscal therapy due to the extreme degeneration of the disc.  
During the 18 June 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported chronic LBP.  She reported she was medically not qualified to return to her civilian DoD law enforcement job.  Physical examination documented range of motion (ROM) as “severely reduced” in flexion and extension, with no other planes of motion reported.  There was tenderness to the lumbar region.  Maneuvers to elicit radicular symptoms were reported as positive bilaterally.  Pain was elicited during tests for facet joint disease and hip pain.  

A 2 September 2004 neurosurgery addendum to the MEB, 4 months before separation, indicated the CI had pain with flexion and extension, but was “not actually limited in motion.”  The summary detailed the CI had significant DDD at L5-S1, with lesser changes at L4-L5.  The September 2004 JDETS form indicated the CI was unfit due to the low back condition.

At the 22 August 2005 VA Compensation and Pension (C&P) evaluation, 8 months after separation, the CI reported constant localized LBP.  She reported she could function with medication, had not lost any time from work, and denied any periods of incapacitation.  Physical examination showed a normal gait.  The CI was using a cane for ambulation because it improved “stability for back and feet.”  Thoracolumbar ROM was reported as flexion of 80 degrees (normal 90) and combined ROM of 200 degrees (normal 240), with painful motion noted.  The VA examiner indicated there were no signs of intervertebral disc syndrome with chronic or permanent nerve root involvement.  Lumbar spine X-rays were reported as showing interspace narrowing at L5-S1, likely developmental, but otherwise normal.  The VA examiner rendered a diagnosis of lumbar strain due to the CI’s low back symptoms, decreased ROM and “essentially normal X-ray findings.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the DDD 10%, coded 5243 (intervertebral disc disease).  The original 4 May 2006 VA rating decision deferred a rating for the DDD condition, citing need for resolution in differences of the medical diagnoses of DDD in the STR and private medical records, or lumbar strain as noted by the VA examiner.  The VA later rated the DDD of the lumbar spine 20%, coded 5243 (intervertebral disc disease), based on the 17 August 2006 C&P examination, 20 months after separation, citing ROM of 125 degrees. 

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 combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the MEB and VA examinations 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.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  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 DDD condition.  

Contended PEB Condition:  Plantar Fasciitis (PF) of Both Feet.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended bilateral PF condition was not unfitting.  According to the STR and MEB NARSUM, the CI’s PF began prior to activation in November 2001. In August 2001, during employment as a DoD civilian in the law enforcement department on base, she stepped on a pipe and injured her right foot.  She was diagnosed with PF and the symptoms of the right foot did not fully resolve.  She was restricted to desk work.  Following activation, the CI served as part of the security forces and stood on her feet greater than 8 hours per day.  Her right foot symptoms reportedly worsened and eventually she developed the same symptoms in the left foot.  The CI was evaluated by podiatry and diagnosed with bilateral PF.  She was treated with orthotics, night splints, exercises, and injections but her symptoms persisted.  At a 2 April 2004 primary care visit the CI requested new orthotics for PF pain for more than a year.  Physical therapy and occupational therapy advised the CI she was unfit to serve and she should request a medical board.  At the 26 April 2004 podiatry visit tenderness of the medial calcaneal tubercle was noted despite maximal medical treatment; this finding was consistent with PF.

The 22 June 2004 NARSUM examination noted complaints of bilateral foot pain.  Physical examination showed normal circulation and temperature of the feet.  Strength was normal.  There was no swelling or discoloration.  There was tenderness of the medial tubercle of the calcaneus of both feet with no pain to palpation of the plantar fascia noted.  The CI was determined to fail retention standards due to bilateral PF.  Physical limitations were recommended and included no high impact activities, no standing more than 20 minutes per hour, no participation in command PT, no exposure to extreme weather; wearing soft or civilian shoes was also recommended.  

The 5 August 2004 non-medical assessment (NMA) indicated the CI had been recommended for a Notice of Eligibility (NOE - medical benefits program for Reserve component members) for PF of both feet during her mobilization from November 2001 to November 2003.  The Navy determined the CI was fit for duty and could be demobilized.  Subsequently, an occupational medical specialist on base determined the CI was “not medically qualified” to return to her civilian job as a DoD law enforcement officer.  The CI applied and was accepted for Active Duty for Special Work [with accommodations of being able to sit or stand as needed] and performed administrative/manpower duties beginning in February 2004.  The August 2004 NMA indicated that although the CI was able to work 8-hour shifts most days, the commander did not think she would be able to “perform the normal duties of a storekeeper [her enlisted military specialty] at this time or in the near future.”  The commander did not specify whether duty performance was impaired by the CI’s back or feet conditions or both.  There was an approved line of duty (LOD) determination for the bilateral PF conditions dated 27 August 2004.  

The September 2004 JDETS indicated that due to the bilateral PF the CI had physical limitations of no impact activities, no standing over 20 minutes, and required wear of soft shoes.  The JDETS indicated the PF conditions were “unsuitable” for continued military service but not unfitting.  There was evidence in record that during periods of active duty the CI performed duties with multiple physical limitations due to bilateral PF; she was referred for a medical board for her PF condition while performing administrative functions during the period of active duty in 2004: and the NMA implicated the PF conditions.  The CI was treated for PF of both feet and there was no distinction regarding the severity of the PF of either foot; the NMA implicated bilateral PF.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either foot over the other.  After military separation, a civilian podiatrist indicated all conservative treatment had been tried without resolution of her PF symptoms and surgery was offered.  On 27 May 2005, 5 months after separation, the CI underwent surgery for bilateral plantar fascia release.  Following the surgery she continued to report foot pain.  

At the 22 August 2005 C&P evaluation the CI reported pain and swelling of the feet with standing and walking.  She was not using any support in her shoes.  She was using a cane for ambulation for “stability for back and feet” and reported she could only stand or walk for 15 minutes because of pain.  Physical examination showed a normal gait.  There was painful motion and tenderness of both feet.  Pes planus was not present.  

The panel concluded a preponderance of evidence in record supported the right foot and left foot PF conditions were unfitting at separation and both were eligible for rating.  The panel directed attention to its rating recommendation based on the above evidence.  The PEB determined the PF was not unfitting.  The VA rated the PF at 20%, coded 5020-5284, (synovitis – foot injuries, other), based on the C&P examination, citing moderately severe foot injury.  The panel noted that at the time of the initial VA examination, the CI had already undergone surgery on both feet for the PF.  Therefore, the panel concluded the CI’s condition at that time was not reflective of her disability due to the PF conditions at separation and relied on the evidence at the MEB NARSUM examination for its rating recommendation.  

Since the rating evidence was identical for both feet, the panel considered its rating recommendations together.  There was evidence of tenderness of the bottom of both feet and pain aggravated by weight-bearing activities for a 10% rating for each foot, coded analogously to 5310 (Muscle Group X- includes the plantar fascia) IAW VASRD §4.73 (Muscle Injuries).  The rating criteria of 5399-5310 are 0% rating for “slight,” 10% rating for “moderate,” and 20% for “moderately severe” muscle injury.  The panel considered that when coding the disability due to PF analogously as 5310, the discrimination between the “slight” and “moderate” characterizations depends on the presence of at least one “cardinal sign or symptom” of muscle injury. These are specified as “loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement” for “moderate,” as opposed to none for “slight.”  At the time of separation, there was no evidence to support characterizing the PF of either foot as “moderately severe,” which by analogy panel members judged would require more symptoms and greater objective evidence of foot abnormalities such as swelling or pain on manipulation of the foot.  There was likewise evidence to support a 10% rating for each foot coded analogously as 5299-5284 for moderate foot injury IAW VASRD 4.71a.  By the same reasoning as noted above, the panel agreed the CI’s feet conditions could not be characterized as moderately severe under 5284 for higher rating.  The panel considered alternative VASRD foot and analogous codes, but all were less applicable and/or not advantageous to rating.  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 right PF condition, and 10% for the left PF condition, both coded 5399-5310.

BOARD FINDINGS:  In the matter of the degenerative disk disease and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended bilateral PF conditions, the panel unanimously agrees that PF of each foot was unfitting and recommends a disability rating as follows: an unfitting right PF condition and an unfitting left PF condition, rated 10% each, both coded 5399-5310 IAW VASRD §4.73.  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	
Degenerative Disk Disease	5243	10%	
Right Plantar Fasciitis	5399-5310	10%	
Left Plantar Fasciitis	5399-5310	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161010, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:      (a) DoDI 6040.44
	(b) PDBR ltr dtd 01 Mar 18 ICO XXXXXXXXXXXXXXXXXX 
	(c) PDBR ltr dtd 20 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 27 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 13 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 02 Oct 17 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (f) are approved.  The official records of the following individuals are to be corrected as follows:

     a. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Temporary Disability Retired List at time of discharge for six months with a disability rating of 50 percent followed by transfer to the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent).

     c. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 50 percent rating (increased from 0 percent) effective date of discharge. 

     d. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.      

     e. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.   
     
2.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.