RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00007
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20041215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E4, Food Service Specialist, medically separated for “chronic low back pain,” “chronic right hip pain” and “bilateral foot pain,” rated 10%, 10% and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The VA gave him a higher rating.  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 - 20040917	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	No VA Examination Proximate to Separation in Evidence	
Chronic Right Hip Pain	5099-5003	10%		
Bilateral Foot Pain from Plantar Fasciitis	5399-5310	0%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in July 2003 when he jumped from a vehicle, slipped, and fell onto his back.  The back pain (and foot pain – see below) led to the CI being evacuated from theater in October 2003.  During the 13 January 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 11 months prior to separation, the CI reported back pain since an injury 6 months prior.  Physical examination showed back tenderness.  

The 8 April 2004 MEB NARSUM examination, 8 months prior to separation, noted complaints of chronic low back pain.  Physical examination showed a mildly antalgic gait.  Physical Therapy (PT) formal goniometric range of motion (ROM) measurements were 50 degrees of flexion (normal 90) and 170 degrees of combined thoracolumbar ROM (normal 240).  There was no spine tenderness or non-physiologic findings.  X-rays of the lumbar spine were normal.  Subsequent treatment notes indicated use of an electrostimulation unit (TENS), continued back pain with forward flexion decreased by 50% with pain (22 June 2004) and subsequent use of a cane (13 October 2004).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing “forward flexion of 70 degrees.”  There was no VA examination proximate to separation in evidence.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees, as reported on the NARSUM examination.  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 recommends a disability rating of 20% for the back condition, coded 5237.  

Chronic Right Hip Pain.  According to the STR and MEB NARSUM, the CI’s right hip condition was aggravated while deployed in July 2003.  The 8 April 2004 MEB NARSUM examination noted complaints of chronic right trochanteric bursitis.  Physical examination showed a mildly antalgic gait.  There was tenderness to palpation over the right greater trochanter.  There was increased pain with hip abduction, but not with rotations.  PT ROM measurements showed 115 degrees of flexion (normal 125), 15 degrees of extension (normal 30), 40 degrees of external rotation (normal 45), 45 degrees of abduction (normal) and 25 degrees of adduction (normal 45).  X-rays of the right hip were normal.  Subsequent treatment notes indicated use of a cane (13 October 2004).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right hip condition 10%, coded 5099-5003 (analogous to degenerative arthritis), citing moderate pain.  The NARSUM examination documented satisfactory evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion, extension, or thigh impairment for greater than a 10% rating (codes 5251, 5252, or 5253).  The panel next considered rating analogous to code 5255 (femur impairment) and adjudged that the CI’s impairment at separation did not approximate the “moderate” level of knee or hip disability to warrant the next higher rating.  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 right hip condition.  

Bilateral Foot Pain from Plantar Fasciitis.  The PEB combined the left and right foot conditions under a single disability rating, coded analogously to 5310 (muscle group X) and rated 0%.  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’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 left and right foot conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  
According to the STR and MEB NARSUM, the CI developed bilateral plantar fasciitis while deployed in July 2003.  During the 13 January 2004 MEB examination the CI reported bilateral foot pain.  Physical examination showed tenderness to palpation of both feet.  The 8 April 2004 MEB NARSUM examination noted complaints of bilateral foot pain made worse with walking in the sand and rocks and jumping on and off of vehicles.  Physical examination showed each foot with full active ROM, with no swelling or obvious deformities.  There was tenderness to palpation over the bilateral plantar fascia.  Right foot X-rays in July 2004 showed subtle calcification about the insertion of the Achilles tendon.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral plantar fasciitis 0%, coded 5399-5310 (analogous to group X muscle injury), citing that it could not “be separately rated due to pyramid[ing].”  In this case, both feet were considered to fail retention standards, both were implicated by the NARSUM and the commander’s statement, and both were profiled; therefore each foot was considered separately unfitting.  

Although absent the Army pain policy, rating pain in the feet with a separate diagnosis of plantar fasciitis of each foot would not be pyramiding IAW VASRD §4.14 (avoidance of pyramiding), neither foot separately nor both feet together would reach the 10% rating criteria.  There was insufficient evidence of moderate muscle injury of either foot for the next higher rating under code 5310 IAW VASRD 4.55 (principles of combined ratings for muscle injuries), §4.56 (evaluation of muscle disabilities) and §4.73.  Alternative rating under VASRD §4.71 analogous to 5020 (synovitis) or 5276 (flatfoot, acquired) was considered, but did not provide any rating higher than the 0% awarded by the PEB.  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 bilateral plantar fasciitis.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the right hip condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral plantar fasciitis, 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 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	
Chronic Low Back Pain	5237	20%	
Chronic Right Hip Pain	5099-5003	10%	
Bilateral Plantar Fasciitis	5399-5310	0%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161024, w/atchs
Exhibit B.  Service Treatment Record

AR20180002689, 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure