RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03932
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050704

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Combat Engineer, medically separated for “bilateral pes planus” with a disability rating of 10%.  

CI CONTENTION:  Review all conditions. The CI also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20050502	VARD - 20051003	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Pes Planus	5299-5276	10%	Bilateral Pes Planus	5276	10%	STR	
Mild Hyperlipidemia	Not Unfitting 	 No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Bilateral Pes Planus.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was noted to have normal arches on his enlistment examination in July 2000, but was diagnosed with bilateral pes planus by podiatry in April 2004.  Weight bearing X-rays of the feet were normal.  The CI had a long history of bilateral foot pain with radiating painful paresthesias from the tarsal tunnel area.  Electrodiagnostic studies revealed normal plantar sensory responses bilaterally and normal motor responses without any evidence of polyneuropathy.  The responses were symmetric and also excluded a mononeuropathy.  In May 2004 the CI was treated with new orthotics.  Left tarsal tunnel syndrome was considered based on complaints of mostly left foot burning and stinging type pain radiating throughout the plantar area of the left foot.  Physical therapy examination showed 1+ swelling of the medial foot just anterior to the calcaneus, and overpronation.  Palpation of the medial ankle shot pain down into the plantar foot.  ROMs of the ankle and toes were full.  There was a positive Tinel’s test (to determine nerve irritation) at the tibial nerve just posterior to the malleolus.  The CI indicated he was told X-rays were normal, but the podiatrist indicated there was some joint angulation in the foot.  An MRI of the left ankle on 30 August 2004 showed no evidence of a discrete lesion in the tarsal tunnel, although there were mild T2-weighted hyperintense changes as well as a small 3 x 3 mm fluid focus within the sinus tarsus. There was also mild thickening of the posterior tibialis tendon and peroneal longus tendon.  Custom UCBL (University of California Berkley Lab) arch support orthotics were prescribed for the CI, but worsened his pain.  Physical therapy failed to improve his symptoms.  Surgical intervention was offered, but because of a low probability of success, the CI declined surgery.  

The 4 February 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of pain in the feet, which worsened with activity such as marching, running or jumping.  Physical examination showed the lower extremities were within normal limits with the exception of the severe pes planus of the feet.  During the 14 March 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported numbness in both feet after prolonged activity.  Physical examination revealed severe, symptomatic pes planus.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral pes planus condition 10%, analogously coded 5299-5276 (flatfoot, acquired), citing moderate disability.  Panel members noted the PEB assigned a 10% rating for moderate bilateral pes planus.  However, from the first time the diagnosis of pes planus was made by a podiatrist, the term severe was used to describe the disability and was used again in the both the NARSUM and MEB examinations.  Furthermore, over pronation was noted during an initial physical therapy examination as was medial 1+ swelling bilaterally.  Both pain on manipulation and use were noted and the prescribed orthotics did not help.  The panel majority noted the plain reading of the word severe as used in the NARSUM and MEB examinations, upon which PDBR ratings are determined, provides the basis for the majority position and is supported with the findings of over pronation, swelling and pain on palpation and use.  The minority voter noted that the left foot was the focus of several examinations, and the bilateral pes planus condition had more features of a 10% rating than a 30% rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 30% for the bilateral pes planus condition, coded 5276.  

Contended PEB Condition:  Hyperlipidemia.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The panel notes the condition is an abnormal laboratory finding and not a physical disability.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the bilateral pes planus, the panel majority recommends a disability rating of 30%, coded 5276 IAW VASRD §4.71a.  The single voter for dissent recommends no change and submitted the appended minority opinion.  In the matter of the contended hyperlipidemia, the panel recommends no change from the PEB determination as not unfitting.  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	
Bilateral Pes Planus	5276	30%	

MINORITY OPINION:  The minority voter, after considering all the evidence, recommends a disability rating of 10% for the left foot pes planus coded 5299-5276 and 0% for the right foot pes planus also coded 5299-5276.  The CI’s left foot pes planus was consistent with a moderate rating versus the severe rating proposed by the majority.  

The right and left feet were determined to fail retention standards IAW AR 40-501 chapter 3 paragraph 13(b)1, per MEB proceedings dated 28 March 2005.  The PEB determined the CI’s persistent bilateral foot pain was unfitting according to the PEB proceedings from 2 May 2005.  This was consistent with the CI’s military duty as a combat engineer that required standing for prolonged periods of time.  The permanent physical profile, dated 7 January 2005, showed the CI’s pes planus severity level was L3.  

The 14 December 2004 podiatry examination showed no swelling of the feet and no erythema, nor did the feet appear deformed.  Examination focused mainly on the left foot.  VASRD diagnostic code 5276 states:  “Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral is rated 10%, bilateral or unilateral.”  

The PEB rated the bilateral pes planus condition 10%, coded 5299-5276 (flatfoot, acquired), citing moderate disability.  The VA also rated the bilateral pes planus condition 10%, coded 5276 (flatfoot, acquired) citing weight bearing line over or medial to the great toe with inward bowing of the tendo achillis, and pain on manipulation and use of the feet.  

In the matter of the bilateral pes planus, the minority, with consideration of all the evidence and mindful of VASRD §4.3 (reasonable doubt), recommends no change to the PEB’s disability rating of 10%, as an accurate and fair evaluation of the bilateral pes planus condition, IAW VASRD §4.71a, was effected by the PEB.  

Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation of no change in the PEB adjudication.  

AR20190006855, 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), 
	A copy of this decision has also been provided to the Department of Veterans Affairs