XXXXXXXXXXXXXXXXXX. 

XXXXXXXXXXXXXX, .
XXXXXXXXXXXXX,  
XXXXXXXXXXXXX

Dear  XXXXXXX:

	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.
 
	A copy of this decision has been provided to the counsel you listed on your application; 

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX. 	CASE:  PD-2017-03512
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070404

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Wheeled Vehicle Mechanic, medically separated for “chronic bilateral foot pain” with a disability rating of 0%.   

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 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 - 20070227	VARD - 20070827	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Foot Pain	5099-5003	0%	Bilateral Plantar Fasciitis	5299-5276	0%	20070703	
Bilateral Knee Pain	Not Unfitting	Retropatellar Pain Syndrome, Left	5299-5261	10%		
		Retropatellar Pain Syndrome, Right 	5299-5261	10%		
Occasional LBP		Lumbar Strain	5237	10%		
Hypercholesterolemia		No VA Placement	
Obesity			
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Bilateral Foot Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered an onset of bilateral foot pain with running.  Bilateral weight-bearing X-rays were normal, but a bone scan showed some mild uptake consistent with overuse, but no stress fractures.  Podiatry diagnosed overuse syndrome aggravated by obesity.  Attempted weight loss and conservative treatment were unsuccessful.  There was no documentation in STR clinical entries of decreased range of motion (ROM), painful motion, gait disturbance, deformity or any additional VASRD-ratable findings.   

A 13 October 2006 podiatry addendum to the NARSUM documented nonspecific “bilateral plantar foot pain” aggravated by load-bearing or prolonged standing or walking.  The physical examination recorded the absence of pes planus but noted “an extremely wide forefoot to rearfoot relationship.”  The examiner made no comment regarding tenderness, swelling, deformity or gait disturbance; and, stated that bilateral ankle joint, subtalar and great toe ROM were normal.  

The 17 January 2007 MEB NARSUM examination, 3 months prior to separation, documented nonspecific bilateral foot pain that prohibited “rucking, marching, running or jumping.”  Further elaboration and physical findings were deferred to the above podiatry addendum.  The MEB submission (per podiatry diagnosis) was “soft tissue pain, foot, bilateral.”  There was no differentiation in the service evidence of right versus left severity or fitness implications, to include the profile and commander’s performance statement.  

At the 3 July 2007 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported constant bilateral foot pain (no differentiation right versus left) rated 6/10 that was aggravated by standing or walking.  The physical examination recorded a normal gait, bilateral foot tenderness and the absence of painful motion, weakness or atrophy.  The examiner specifically excluded the presence of pes planus and all other VASRD-coded foot deformities or diagnoses.  Bilateral ankle ROM measurements were normal for dorsiflexion (20 degrees) and plantar flexion (45 degrees), specifying pain at end-ranges on the right with no painful motion on the left and no ROM degradation with repetition.  

The panel directed attention to its rating recommendations based on the above evidence.  The PEB rated the bilateral foot pain 0%, coded 5099-5003 (analogous to degenerative arthritis), citing intermittent and minimal pain IAW the US Army Physical Disability Agency pain policy.  The VA also conferred a bilateral rating of 0%, coded 5299-5276 (analogous to pes planus), based on the C&P examination, citing “mild: symptoms relieved by built-up shoe or arch support.”

The PEB and VA combined potentially separate foot conditions under a single disability code.  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 noted that “bundling,” the combining of two or more major joints, may be permissible under VASRD 5003 rating criteria; and, some VASRD foot codes (including code 5276 as applied by VA) offer bilateral ratings.  In these instances, a combined bilateral rating does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was 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.  

The clinical presentation in this case, with no unilateral trauma or significant difference in acuity between the feet, was intrinsically a bilateral condition; and, members agreed that bilateral rating under any permissible code was justified.  It was reasonable to conclude that the performance limitations confined to either foot alone would not have rendered the CI incapable of continuing military service, and that more likely it was the combined effect of the bilateral condition which rendered him unfit.  Member consensus was that there was no satisfactory evidence of painful or limited motion warranting a minimum 10% rating under 5003 criteria, whether that be bilateral for two or more major joints or individually if each foot were conceded as separately unfitting.  

The panel further considered if a bilateral rating higher than 0% could be achieved under an alternate applicable foot code.  Although pes planus was not present, analogous rating under 5276 criteria as pursued by the VA was acceptable.  It might be argued that symptoms were not entirely relieved as a challenge to the 0% criterion of 5276 (see above), but there was no evidence for any of the objective criteria (various deformities and pain on manipulation) required for the minimum 10% or higher rating under 5276.  No additional deformities or VASRD-ratable foot diagnoses were in evidence, as above, and were specifically excluded by the C&P examiner.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority agreed there was insufficient cause to recommend a change in the PEB adjudication for the bilateral foot condition.
	
Contended PEB Conditions:  Bilateral Knee Pain, Low Back Pain, Hypercholesterolemia and Obesity.  It is first noted that neither hypercholesterolemia (an asymptomatic laboratory finding) nor obesity are subject to disability rating by the service or VA, and will not be addressed further.  

The CI developed knee pain with running that was managed with a temporary profile and anti-inflammatory medication.  The NARSUM stated that he did not follow-up and there were no STR entries associated with the condition for over a 2-year period of time leading up to separation.  There was also an atraumatic onset of low back pain in 2004 with no clinical acuity for a similar protracted period prior to separation.  The NARSUM stated that he “continues to function as a soldier” with periodic back pain treated by anti-inflammatory medication.  The knee and back conditions were submitted by the MEB as meeting retention standards.  Neither was profiled at separation and neither was implicated in the commander’s performance statement.  

The panel’s main charge is to assess the fairness of the PEB determination that these conditions were not unfitting.  There was no performance-based evidence from the record that any of them significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the bilateral foot condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent recommends modification to a 10% rating but does not elect to submit a minority opinion.  In the matter of the contended bilateral knee pain, low back pain, hypercholesterolemia and obesity, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.