RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-05882
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060818

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated for “chronic non-radiating mid back pain” and “chronic right foot pain,” each rated 0%, with a combined disability rating of 0%.  

CI CONTENTION:  Unfitting back condition caused urinary incontinence.  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 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 - 20060517	VARD - 20090108	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-Radiating Mid Back Pain	5299 5237	0%	Multilevel DDD With Lumbar Strain ...	5242	10%	20060522	
Chronic Right Foot Pain	5299 5276	0%	Severe Bilateral Flat Feet	5276	NSC	20060522	
Stress Urinary Incontinence	Not Unfitting	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20% 	

ANALYSIS SUMMARY:  

Chronic Non-Radiating Mid Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI had a history of congenital scoliosis and chronic back pain that was exacerbated by a strain injury in 2005 while deployed to Kuwait.  An MRI, 19 July 2005 demonstrated degenerative disc disease (DDD) (L4/5 and L5/S1 with mild foraminal narrowing at L5/S1).  There was no radiculopathy, neurological examinations were normal and surgery was not recommended.  Provider entries in the STR documented tenderness and a normal gait.  There were no entries that provided evidence for any limitation of range of motion (ROM), spasm or guarding, painful motion, incapacitating episodes, or any other VASRD-ratable findings.  

The 1 November 2005 MEB NARSUM examination, 9 months prior to separation, documented mid-thoracic and low lumbar pain rated 6/10 that prohibited running, heavy lifting, and sustained loadbearing.  The physical examination recorded a normal gait, no tenderness, and no note of spasm, guarding, or abnormal neurological findings.  The examiner documented grossly normal thoracolumbar flexion "to the floor,” nevertheless specifying that a goniometer was used.  Measured combined ROM (assigning flexion as normal 90 degrees) was 240 degrees (normal), specifying painful motion.

At the 22 May 2006 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported constant back pain rated 7/10 that prohibited running, sitting longer than an hour, standing longer than 30 minutes, walking over a mile and a half, and heavy lifting.  The physical examination recorded “a mild limp” (concurrent foot pain), tenderness, no spasm and normal neurological findings.  Measured ROM was flexion to 85 degrees and combined ROM was 235 degrees, specifying painful motion but no ROM degradation with repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar condition 0%, coded 5299-5237 (analogous to lumbosacral strain), citing no tenderness or spasm and full motion without reference to painful motion.  The VA rated the condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination and citing the applicable VASRD §4.71a spine criterion for limitation of flexion (see below).

Although there was no ROM limitation from the service evidence that would justify a minimum 10% rating, the panel noted that both spinal tenderness (STR provider evidence and C&P examination) and painful motion (NARSUM and C&P) are §4.71a spine criteria for a 10% rating.  The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on pre-separation C&P examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no diagnosis of intervertebral disc syndrome or documentation of incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the lumbar spine condition under code 5242.  

Chronic Right Foot Pain.  On her service entry physical in 1994, the CI was noted to have mild bilateral pes planus and a childhood history of foot surgery.  Bilateral X-rays in 2005 were interpreted as mild pes planus on the right only with some degenerative changes of the talar dome.  There was documentation in STR provider entries of normal ankle ROM without note of painful motion or pain on manipulation, and no documentation of deformity, malalignment, swelling, callosities, or other VASRD-ratable findings.  

A podiatry addendum for the MEB on 29 December 2005, 8 months prior to separation, documented nonspecific right foot pain rated 7/10 without elaborating functional impairments.  The physical examination recorded no swelling, normal strength, normal subtalar motion, and no note of malalignment or other positive findings.  Measured right ankle ROM was dorsiflexion to 30 degrees (normal 20) and plantar flexion to 40 degrees (normal 45), specifying painful motion.  

The pre-separation C&P examination (same as above) addressed bilateral pes planus and foot pain without differentiating right versus left.  The CI complained of constant bilateral foot pain rated 7/10 and the examiner listed the same functional limitations as those elaborated above for the lumbar condition.  The physical examination recorded bilateral pes planus with minimal pronation (2 degrees valgus deviation of Achilles), the absence of foot tenderness, and grossly normal ankle ROM “without pain.”  There was no note of additional malalignment or abnormal weight bearing, swelling, callosities, or other positive findings.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition 0%, coded 5299-5276 (analogous to acquired pes planus), without specifying rating criteria.  The VA determined that the bilateral pes planus (coded 5276) was not service connected, based on the same C&P examination and citing the lack of objective evidence that the condition was aggravated by service. 

There was no minimum compensable ROM limitation for the ankle or foot, although the podiatry addendum documented painful motion for the ankle.  This was in conflict with the C&P examination, however, which was temporally closer to separation.  There was no documented evidence for any specific criterion of code 5276 or other VASRD foot or joint code in support of a minimum 10% rating, other than the minimal pronation noted by the VA examiner.  It was noted, however, that code 5276 offers a unilateral 10% rating for “inward bowing” of the Achilles tendon (C&P) without specifying the degree, and for “pain on manipulation and use of the feet.”  There was no documentation for pain on manipulation of the foot, but there was forthright evidence for pain on use.  Members thus agreed that reasonable doubt favored concession of those 10% criteria, although none of the criteria for a higher rating under code 5276 were in evidence.  Of further note, even if the 10% criteria of code 5276 were not conceded, analogous rating under code 5279 (metatarsalgia) offering a 10% rating for unilateral pain, or code 5284 (foot injuries, other) offering a 10% rating for moderate disability, were also subject to consideration.  After due deliberation, considering all the evidence and conceding reasonable doubt, the panel recommends a 10% rating for the right foot condition under code 5299-5276.

Contended PEB Condition:  Stress Urinary Incontinence.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement and did not fail retention standards.  There was no performance-based evidence from the record that it 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 the stress urinary incontinence, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the lumbar spine condition, the panel recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  In the matter of the right foot condition, IAW VASRD §4. 71a, the panel recommends a disability rating of 10%, coded 5299-5276.  In the matter of the contended stress urinary incontinence condition, the panel recommends no change from the PEB determination as not unfitting.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Disc Disease, Lumbar Spine	5242	10%	
Pes Planus with Chronic Pain, Right Foot	5299-5276	10%	
COMBINED	20%	

AR20200004311

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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 also been provided to the Department of Veterans Affairs.