RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01724
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050214

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Infantryman, medically separated for “radiating neck pain” and “bilateral foot pain,” rated 20% and 0%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI requests that the PDBR “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 - 20050125	VARD - 20050912	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Pain of the Neck	5241	20%	Status Post Discectomy and Fusion at C5-6	5243	30%	20050610	
Bilateral Foot Pain with Hallux Limitus	5299-5281	0%	Bilateral Hallux Limitus with Bilateral Plantar Fasciitis	5299-5276	10%		
			Scar, Residual Cheilectomy Right Great Toe	7804	10%		
Headaches	Not Unfitting 	Headaches, Residuals Head Injury	8199-8100	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Radiating Pain of Neck with Subjective Radicular Symptoms.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent discectomy and fusion at C5-6 on 6 November 2003.  Postoperative X-rays on 13 November 2003 and 8 December 2003 showed cervical spine alignment within normal limits.  Neurosurgical evaluation on 9 December 2003 revealed strength 5/5 in the upper extremities bilaterally and reflexes 2+ bilaterally with sensation intact to light touch.  There was no dysfunction with gait and coordination and Spurling’s sign (to determine nerve irritation) was negative.  The CI underwent physical therapy (PT) in March 2004 for continued neck pain and headaches (see below) without any lasting relief.  Follow-up X-rays on 26 March 2004 showed the cervical spine to be stable with normal alignment in flexion and extension.  MRI studies completed on the same day showed 15% height loss involving the C5 vertebral body, grade I retrolisthesis (posterior displacement) of C5 relative to C6, and a larger inferior-posterior corner osteophyte at C5 resulting in severe right and moderate-to severe left neural foramina narrowing.  At a clinic visit on 21 May 2004 the CI reported an acute exacerbation of neck pain radiating down his right arm into the 3rd, 4th, and 5th digits.  

The 26 May 2004 MEB NARSUM examination, 9 months prior to separation, noted complaints of neck pain with radiation bilaterally into the occipital region.  The CI reported residual numbness and tingling in the upper extremities.  He was unable to wear Kevlar, perform sit-ups, or complete his 2-mile run secondary to pain.  Physical examination showed strength was 5/5 in upper extremities, but reflexes were diminished on the right triceps and biceps.  All other reflexes were 2+ bilaterally.  Sensation was intact.  No dysfunction with gait or coordination was present.  Cervical range of motion (ROM) measurements after rounding were flexion of 30 degrees (normal 45) and combined ROM of 150 degrees (normal 340).  The CI underwent a rheumatologic evaluation on 29 July 2004 for joint pains and a history of being told in the past he had fibromyalgia.  Examination revealed 9/18 tender points and “marked decrease ROM of the neck in all planes,” movement of which caused “shooting pain in the arms.”  Although he had chronic widespread pain, both degenerative and myofascial, he did not meet the criteria for fibromyalgia.  At the 7 December 2004 PT examination, 2 months prior to separation, ROM measurements were cervical spine flexion of 10 degrees and combined ROM of 85 degrees.  All ROMs were limited due to pain. 

At the 10 June 2005 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported constant pain with limitation of motion, but no incapacitating episodes.  Physical examination showed cervical spine was abnormally straight.  There was tenderness to light touch, and moderate spasm throughout the paraspinous muscles.  ROM measurements showed flexion of 5 degrees and combined ROM of 120 degrees.  Repetitive motion increased pain and stiffness at all planes of movement, but did not change the ROMs.  There was 3/5 strength of neck muscles with slow stiff movements and mild incoordination because of pain and fatigue.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 20%, coded 5241 (spinal fusion), citing pain with decreased ROM and mild clinical signs of radiculopathy at C5-6 on the right.  The VA rated the neck condition 30%, coded 5243, (intervertebral disc syndrome), based on the C&P examination 4 months after separation, citing forward flexion less than 15 degrees.  The panel majority agreed that a 30% rating was justified for limitation of flexion not greater than 15 degrees as reported on the PT examination prior to separation and the VA examination 4 months after separation as well as a rheumatology examination that did not quantitate the ROMs but noted a “marked decrease ROM of neck in all planes,” movement of which caused “shooting pain in the arms.”  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula, or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 30% for the neck condition, coded 5241.   

Bilateral Foot Pain with Hallux Limitus.  According to the STR and the MEB NARSUM, the CI’s bilateral foot pain condition began initially with left foot pain in April 2003 and then bilateral foot pain in May 2003. No trauma or injury was reported.  X-rays of the feet on 27 May 2003 demonstrated degenerative changes of the right first metatarsal, the anterior margin of the left distal tibia, and the dorsal margin of the mid left tarsals and large accessory ossicles adjacent to the cuboid bilaterally.  Podiatry evaluation on 23 June 2003 indicated the CI had excessive pronation and nerve entrapment versus neuritis at the tarsal tunnel and hallux valgus with mild bunions bilaterally.  On 23 June 2003, X-ray studies showed an Achilles spur bilaterally.  On 3 November 2003 X-ray studies showed degenerative changes in the right 1st metatarsophalangeal joint with dorsal osteophyte and no significant changes from the prior X-rays.  At a podiatry visit in August 2003 the examiner noted the CI had custom, rigid polypropylene orthotics dispensed 3 weeks earlier, but did not transition into the right usage since they appeared to be slightly long, which resulted in overuse injuries of the bilateral arches and metatarsophalangeal joints.  During the 12 April 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 10 months prior to separation, the CI reported foot trouble bilaterally since mobilized.  The examiner noted bilateral foot pain by verbal history.

At the 19 May 2004 podiatry examination, the CI was diagnosed with bilateral hallux limitus based on tenderness with palpation of the medial hallux interphalangeal joint bilaterally and a right dorsal exostosis of the 1st metatarsophalangeal joint that had not responded to conservative treatments of functional and accommodative arch supports and NSAIDS.  The examiner noted the CI was unable to perform his MOS secondary to increased pain with attempted running, jumping, and marching.  Follow-up for continued conservative treatment and possible surgery were recommended.  The 26 May 2004 MEB NARSUM examination was relatively silent other than the mention of the 19 May 2004 podiatry consultation diagnosis of bilateral hallux limitus and imaging studies of the feet as noted above.

At a podiatry clinic visit on 14 September 2004, 5 months prior to separation, the CI had pain with the ROM of the 1st metatarsophalangeal joint bilaterally, which was limited to about 10 degrees of motion on the right and near normal on the left.  Pain was present with palpation on the dorsal and medial aspects of the 1st metatarsal heads, but no crepitus was noted.  On 24 September 2004 the CI was noted to be unable to walk on his heels or toes and had an antalgic gait.  On 5 October 2004 the CI underwent a cheilectomy of the right foot with resection of approximately 1/3 of the dorsal aspect of the 1st metatarsal head with all exostoses dorsally, medially and laterally. At a follow-up visit on 7 January 2005 the CI still had plantar 1st metatarsophalangeal joint pain, which was tolerable.  Hallux dorsiflexion was 60 degrees (within normal limits).  

At the 10 June 2005 C&P evaluation the CI reported his feet were always painful, weak, and easily fatigued.  Physical examination showed painful motion in the feet.  There was no edema and no instability.  There was mild tenderness over the plantar fascia.  He walked very slowly, somewhat on the outsides of his feet, but his shoes did not show uneven wear.  Achilles tendons were aligned with and without weight bearing and they were both slightly tender.  There was mild pes cavus.  The right great toe dorsiflexed 30 degrees and plantar flexed 0 degrees.  The left dorsiflexed 45 degrees and plantar flexed 10 degrees.  The right great toe had a surgical scar that was mild to moderately tender and slightly enlarged.  The examiner’s assessment was bilateral hallux limitus status post repair of the right great toe with residual degenerative disease and limitation of motion.  There was also bilateral plantar fasciitis and Achilles tendon spurs.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral foot pain with hallux limitus, right greater than left condition 0%, coded 5299-5281 (hallux rigidus, unilateral, severe), citing status post surgery on the right foot; foot pain prevents effective functioning in PMOS or soldiering in the field.  The VA rated the bilateral hallux limitus with bilateral plantar fasciitis condition 10%, coded 5299-5276, (flatfoot, acquired), based on the VA examination citing painful feet.  

The PEB combined the bilateral foot pain with hallux limitus conditions as a single unfitting condition coded 5299-5281 and rated 0%. The approach by the PEB commonly 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 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 with hallux limitus conditions was presented together above.  The panel majority agreed that each foot condition is separately unfitting.  The panel majority noted that the CI underwent surgery of the right foot and not the left and the evidence favored a 10% rating for the right foot pain using code 5281, which is rated IAW 5280 (hallux valgus, unilateral-operated with resection of metatarsal head).  Whereas the left foot also had pain, it did not meet the criteria for a 10% rating; therefore, a 0% rating is applicable.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% for the right foot pain condition, coded 5281 and a disability rating of 0% for the left foot pain with hallux limitus condition, coded 5281.  

Contended PEB Conditions:  Generalized Degenerative Joint and Myofascial Pain, Headaches, Hypertension, and S-1 Radiculitis.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The contended conditions were not profiled, implicated in the commander’s statement or judged to fail retention standards.  The CI underwent a rheumatologic evaluation that showed there was no evidence of systemic inflammatory disease by history, review of systems, examination, or laboratory studies.  The CI’s hypertension was under good control with medication.  There was no performance-based evidence from the record that any of the contended 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 determinations for the contended conditions; and so, no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the neck condition, the panel majority recommends a disability rating of 30%, coded 5241 IAW VASRD §4.71a.  In the matter of the bilateral foot pain with hallux limitus condition, the panel majority recommends a disability rating of 10%, coded 5281 IAW VASRD §4.71a for the right foot pain and a disability rating of 0%, coded 5281 IAW VASRD §4.71a for the left foot pain.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended generalized degenerative joint and myofascial pain, headaches, hypertension, and S-1 radiculitis conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that 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	
Chronic Neck Pain	5241	30%	
Right Foot Pain with Hallux Limitus	5281	10%	
Left Foot Pain with Hallux Limitus	5281	0%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161107, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

MINORITY OPINION:  The minority dissent with the majority recommendation was based on the totality of evidence in the service treatment record and VA treatment record for the neck and bilateral foot pain conditions.  The minority member opines that the Formal PEB correctly adjudicated the neck at 20%.  

There was only one ROM measurement in evidence for the Informal PEB to adjudicate, performed by PT on 8 June 2004, which showed a flexion of 30 degrees (normal 45) and a combined ROM of 155 degrees (normal 340).  The Informal Reconsideration PEB corrected the rating to 20% based on total neck motion.  The CI appealed the decision and requested a Formal PEB, however, the CI only appealed his bilateral foot condition.  

The majority based their 30% rating of the neck condition increase, based on a PT examination on 7 December 2004 which showed a limited flexion of 10 degrees and a combined ROM of 90 degrees.  There was no evidence in the service treatment record of additional injury to explain the dramatic worsening ROM measurements.  The minority member notes that the timing of the worsening ROM measurements after the Informal PEB raises suspicion of a secondary gain influence on the need for it.  This factor was weighed in the minority opinion, but was not determinant and was also considered to be unacceptably speculative.  The minority member opines that the Formal PEB correctly adjudicated the bilateral foot pain at 0%.

The CI was mobilized in March 2003 and complained of left foot pain in April 2003 and then bilateral foot pain in May 2003, with no trauma or injury reported.  Evidence showed the CI’s bilateral foot condition existed prior to service and was permanently worsened by service, as adjudicated by the PEB, with a rating of 0%. 

The May 2004 MEB NARSUM showed no dysfunction with gait.  At a Neurology appointment on 30 August 2004, the CI had normal strength in all extremities, normal reflexes, and had a “casual and stress gait narrow-based, and he could heel and toe walk.  At a Pain clinic on that same day the CI had a steady gait.  The CI’s profile allowed the completion the bike for an alternated APFT event, and he was allowed to walk, bike, and swim at his own pace.  

There was evidence of a cheilectomy surgery (to remove bone spurs on the big toe) on his right foot in October 2005, 5 months prior to separation.  Podiatry clinic appointment on 2 December 2004 showed no pain with ROM measurement testing.  There was no performance-based evidence from the record that bilateral foot pain condition significantly interfered with satisfactory duty performance at separation nor was the condition implicated in the Commander’s statement.

The VA C&P examination in June 2005 showed a “slow gait because of pain and stiffness all over his body, multiple joints and muscles,” with no reference to bilateral foot pain.   A 6 October 2005 VA clinic appointment showed a normal gait.  

Consistent with the DoDI 6040.44 standard that Physical Disability Board of Review recommendations are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that there be no modification or re-characterization of the CI’s disability and separation determination.

AR20170019804, 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 40% 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