RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01203
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080401

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Food Service Specialist , medically separated for “intervertebral disc syndrome” and “plantar fasciitis,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “Service connection for right knee condition.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20071205	VARD - 20080417	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome	5243	10%	Degenerative Disc Disease, Lumbar Spine	5243	10%	20070511	
Plantar Fasciitis, Bilateral	5399-5310	0%	Plantar Fasciitis, Right 	5099-5284	NSC	20070511	
			Plantar Fasciitis, Left 	5099-5284	NSC	20070511	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:

Intervertebral Disc Syndrome.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s lower back pain condition began insidiously in October 2005.  She related the pain to the physical requirements of basic combat training, advanced individual training, and working as a food service specialist.  At the physical therapy appointment on 17 January 2007, 15 months prior to separation, the physical examination showed a mild to moderate antalgic gait.  The thoracolumbar spine exhibited tenderness and decreased lordosis.  There were no spasms observed.  Pain was elicited by flexion and extension.  

At the 11 May 2007 VA Compensation and Pension (C&P) examination, 11 months before separation, the CI reported pain in the lumbar region which radiated to the buttocks.  Physical examination showed a normal gait and spinal curvature without spasm.  Lumbar tenderness was present.  Neurological examination was intact.  Thoracolumbar active range of motion (ROM) measurements showed flexion of 60 degrees (normal 90) and combined ROM of 130 degrees (normal 240) after repetition.  There was pain with range of motion in all planes.  

At the 14 September 2007 physical therapy clinic, 7 months prior to separation, the CI reported low back pain.  The physical examination revealed lumbar tenderness.  There was no comment regarding gait and posture.  Neurological examination was within normal limits.  Thoracolumbar active ROM measurements showed flexion of 30 degrees and combined range of motion of 100 degrees after repetition.  All motions were limited due to pain.  

The 17 September 2007 MEB NARSUM examination, 7 months prior to separation, noted reports of persistent back pain, despite conservative therapy to include epidural steroid injections.  Surgery was not advised.  Physical examination showed tenderness, a normal lordotic curve, and a gait that was slow and deliberate but otherwise normal.  No spasm was noted.  Her neurovascular examination was intact.  The examiner noted she was hesitant to bend to remove and replace her shoes and stockings.  X-ray studies from September 2006 of the lumbar spine were normal.  An October 2006 MRI showed no significant findings.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing localized tenderness.  The VA also rated the low back condition 10%, coded 5243, based on the C&P examination.  The panel noted the physical therapy ROM of 30 degrees of forward flexion, but determined that the totality of the evidence supports a 20% rating for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the VA examination.  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 low back condition, coded 5243.  

Bilateral Plantar Fasciitis.  The PEB combined the left and right plantar fasciitis conditions under a single disability rating, coded analogously to 5310 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 right and left plantar fasciitis conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the STR and the MEB NARSUM, the CI’s bilateral foot condition began gradually during September 2005 without any specific incident or trauma noted.  At the 11 May 2007 C&P examination, 11 months before separation, the CI reported pain and swelling of her feet with standing, walking, or other impact activity.  She used orthotic inserts as prescribed by the podiatrist.  Physical examination showed arches were slightly higher than average.  With palpation there was “tenderness of the heels and the proximal 1/3 of the plantar surface of the foot of the medial side.”  Vascular examination was intact.  There was no forefoot or midfoot malalignment, and no redness, swelling, heat, or deformity.  Radiological examination showed no fractures or other significant abnormalities.  

The 17 September 2007 MEB NARSUM examination, 7 months prior to separation, noted complaints of persistent bilateral foot pain.  The CI rated the pain in both feet at 1/10 at rest, but this augmented to 8/10 with the high impact activities required of her as a food service specialist.  She was seen by podiatry and diagnosed with plantar fasciitis and placed on restricted activity.  She was provided with insoles, a night splint, and instructed on appropriate foot exercises.  A suitable trial of therapy failed to produce results.  Physical examination showed her gait was slow and deliberate, but normal.  Arches were normal and there was no edema.  Neurovascular testing was intact.  The examiner noted that “she appeared to have pain in her feet upon weight bearing.”  

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 a normal examination, normal imaging, and no cardinal signs of muscle injury.  The VA did not service connect the plantar fasciitis condition, coded 5099-5284 (other foot injuries), based on the C&P examination.  

The panel first considered if each foot condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  In this case, a bilateral condition was considered to fail retention standards, profiled, and implicated in the commander’s statement.  The evidence reasonably justified that the functional limitations of each foot separately contributed to the CI’s inability to perform her military duties.  Therefore, panel members agreed that each foot was separately unfitting.  

The panel considered its rating recommendation.  VASRD code 5310 discriminates between “slight” and “moderate” by the presence of at least one “cardinal sign or symptom” of muscle injury 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.”  There was evidence of tenderness of the bottom of the right foot and pain, aggravated by weight bearing activities, for a 10% rating for the right foot, coded analogous to 5310 (muscle group X- includes the plantar fascia) IAW VASRD §4.73 (muscle injuries).  Panel members agreed that the evidence did not support a rating for “moderately severe” muscle injury.  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 condition, coded 5399-5310.  

At the time of separation, the totality of the evidence did not support characterizing the plantar fasciitis of the left foot as “moderate,” 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.  By the same reasoning as noted above, the panel agreed the CI’s left foot condition could not be characterized as “moderate” under 5284 for a higher rating.  The panel considered alternative VASRD left foot and analogous codes, but all were less applicable and/or not advantageous to rating.  There was no higher rating supported than 0% for the left foot under any applicable code.  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 left foot condition.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the right foot condition, the panel majority recommends a disability rating of 10%, coded 5399-5310 IAW VASRD §4.73.  The single voter for dissent recommends no change and elected not to submit a minority opinion.  In the matter of the left foot condition, the panel recommends a disability rating of 0%, 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 the medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Intervertebral Disc Syndrome	5243	20%	
Plantar Fasciitis, Right	5399-5310	10%	
Plantar Fasciitis, Left 	5399-5310	0%	
COMBINED 	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170309, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180007346, 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), XXXXXXXXXXXXXXXXXX.

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