RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXX	CASE: PD-2017-04126
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20060331

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Human Resource Specialist, medically separated for “bilateral pes planus” with a disability rating of 10%.

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 - 20060227	VARD - 20061024	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Pes Planus	5299-5276	10%	Bilateral Pes Planus with Plantar Fasciitis	5276	10%	20060824	
Depression	Not Unfitting	Bipolar Disorder	9432	30%	20060905	
Left Wrist Pain	Not Unfitting	Left Wrist Tendonitis	5024	10%	20060824	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:

Bilateral Pes Planus. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered chronic bilateral foot pain (no injury) while deployed in 2004, and subsequent weight-bearing X-rays demonstrated moderate bilateral pes planus. The podiatry diagnosis was bilateral pes planus with an incidental diagnosis of sesamoiditis of the right foot, but no diagnosis of plantar fasciitis. The pain did not respond sufficiently to orthotics, activity limitations or conservative treatment. Provider entries in the STR documented plantar tenderness  and  normal  bilateral  subtalar  range  of  motion  (ROM).            There  was  no  STR

documentation of gait disturbance, excessive pronation, abnormal alignment with weight- bearing, swelling, callosities or other VASRD-ratable findings.

The 12 December 2005 MEB NARSUM examination, 3 months prior to separation, documented the CI’s complaint of bilateral foot pain, rated at 3/10, that prohibited running, jumping and prolonged standing or walking. The physical examination (all findings bilateral) recorded normal gait and ROM without painful motion, “moderate” pes planus, and prominence at the base of the great toes (metatarsophalangeal joints) without specifying tenderness.

At the 24 August 2006 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported “constant bilateral plantar pain,” rated at 4/10, that flared with “walking or standing more than two hours at a time.” The physical examination (all findings bilateral) recorded normal gait and sub-talar ROM without swelling, callosities, deformity or abnormal alignment with weight-bearing. However, there was pes planus with pain on manipulation of the arches and “mild” tenderness at the base of the right great toe. Measured ankle ROM showed dorsiflexion to 20 degrees (normal) and plantar flexion to 45 degrees (normal), with pain but no loss of motion with repetition. The VA diagnoses were bilateral pes planus and plantar fasciitis.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the bilateral foot condition 10%, coded 5299-5276 (analogous to acquired pes planus), noting that it was a preexisting condition without permanent service aggravation but compensable under the 8-year rule (10 USC 1207a). No rating rationale was cited, although the 10% “moderate” criteria of code 5276 are “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.” The criteria for the next higher “severe” rating (30% for bilateral) include “severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.” The VA also conferred a bilateral rating of 10% under code 5276, citing pain with palpation and specifying the absence of the above 30% criteria.

The panel first noted the option of separate ratings for each foot in lieu of the combined bilateral ratings as adjudicated by the PEB and VA. In order to recommend separate ratings for conditions consolidated under a single rating by the PEB, the panel must assess whether each condition is reasonably justified as separately unfitting, although it is considered to be so unless there is a preponderance of evidence to the contrary. That notwithstanding, bilateral rating is offered under various foot codes; and, unless it violates VASRD §4.7 (higher of two evaluations), a bilateral rating under an applicable code is appropriate regardless of separate fitness considerations.

The panel deliberated whether separate right and left foot ratings could be justified under codes 5399-5310 (analogous to the applicable Group X muscle disability code for plantar fasciitis), 5299- 5284 (analogous to foot injures, other) or 5099-5003 (analogous to degenerative arthritis). Panel members agreed, however, that none of these could be justified. Even if separate unfitness ratings were conceded as above, code 5276 is quite specific to the condition under adjudication. There was insufficient evidence for criteria that would support a more favorable rating under alternate codes that would satisfy the provisions of VASRD §4.7 (higher of two evaluations) and/or §4.20 (analogous ratings). Having concluded that bilateral rating under criteria of code 5276 was appropriate, the panel considered whether a rating higher than 10% could be justified, but agreed that the criteria for a higher rating were not sufficiently supported by the evidence. Although pain on manipulation was conceded, it could not be reasonably characterized as “accentuated,” and there was no evidence for any other 30% criterion. After due deliberation, considering all 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 foot condition.

Contended PEB Conditions: Depression and Left Wrist Pain. The panel’s main charge is to assess the fairness of the PEB determinations that the contended conditions were not unfitting. Neither condition was profiled, implicated in the commander’s statement or judged to fail retention standards. There was no performance-based evidence from the record that either condition 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 either condition, so no additional disability ratings are recommended.

BOARD FINDINGS: In the matter of the bilateral foot condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the contended depression and left wrist conditions, 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 there be no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

		PD-2017-04126

AR20190010942, XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXX

	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.

	PD-2017-04126