RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2012-00968
BRANCH OF SERVICE:  Army	BOARD DATE:  20140618
SEPARATION DATE:  20021115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (11B3V/Infantryman) medically separated for back and foot conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The back and foot conditions, characterized as “spondylolysis of L5 with grade 1 spondylolistheses of L5-S1” and “bilateral plantar fasciitis” respectively, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain with radiculitis” and “bilateral plantar fasciitis” as unfitting, rated 10% and 0%.  The CI appealed to the Formal PEB which increased the unfitting rating for the “chronic low back pain with radiculitis” to 20% while the “bilateral plantar fasciitis” remained unfitting, rated at 0%.  The CI was then medically separated.

CI CONTENTION:  “In 1992, I was medically discharged from the active duty (Army) and was found to have three (3) service connected injuries/disabilities.  1. Spondylolysis and Spondylolisthesis of the Lumbar Spine with Degenerative Joint Disease and Radiculopathy (Lower Back Condition).  2. Hypertension.  3. Bilateral Plantar Fasciitis.  Since my military separation in 2002, my conditions have become more chronic and painful and I have had to start taking more medication to deal with service connected injuries/disabilities.  I have appealed my rating in the past and feel that I deserve much more than 20%.”

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting back and foot conditions are addressed below; the requested hypertension condition, which was determined to be not unfitting by the PEB, is likewise addressed below.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service FPEB – Dated 20020606	VA - (4 Mos. Pre -Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain w/ Radiculitis, 	5299-5293	20%	Lumbar Spine Spondylolysis & Spondylisthesis w/ Mild Degenerative Joint Disease & Radiculopathy	5293-5292	10%	20020724	
Bilateral Plantar Fasciitis	5399-5310	0%	Bilateral Plantar Fasciitis	5276	0%	20020724	
Mild Hypertension	Not Unfitting	Hypertension	7101	10%	20020724	
No Other MEB/PEB Conditions 	Other x 4	20020724	
Combined:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030401 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However, the DVA operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Chronic Back Pain with Radiculitis Condition.  The CI sought care for low back pain (LBP) with radiation of pain after heavy lifting in July 2001.  Magnetic resonance imaging on 31 August 2001 disclosed disruption of the bony arch (spondylolysis) of the L5 vertebra with mild slippage (spondylolisthesis) of the L5 vertebra on the sacrum (S1) resulting in narrowing of the neural foramina (space through which the nerve roots pass).  There was no protrusion or herniation of intervertebral discs.  An orthopedic spine surgery evaluation on 15 October 2001 recorded a 2-year history of LBP radiating into the right leg to the foot.  On examination there was “full” range-of-motion (ROM) with normal strength and sensation.  The surgeon offered the CI a surgical option for treatment.  A second opinion neurosurgery evaluation on 19 November 2001 noted there had been no specific trauma other than hard parachute landings.  The examination was normal except for slight weakness of the right great toe extensor muscle.  Sensation was normal and provocative examination maneuver for radicular signs was negative.  The CI’s gait was normal.  The neurosurgeon concluded with a diagnosis of spondylolysis with LBP and slight lower extremity radicular symptoms.  The neurosurgeon advised that surgery was an option to consider which the CI declined at that time.  The MEB history and physical examination on 12 March 2002 recorded a slight decrease in ROM with normal lower extremity strength (5/5) and straight leg raising maneuver was negative for radicular signs.  The orthopedic MEB narrative summary (NARSUM) dated 25 March 2002 recorded complaint of chronic LBP with occasional radiation into the CI’s right leg.  The pain was aggravated by prolonged standing, sitting, sit-ups, pushups running, ruck marching, bending, squatting and lifting more than 10 pounds.  On examination, back flexion was 80 degrees, extension 30 degrees, lateral bending 45 degrees bilaterally, and rotation “full” bilaterally.  Lower extremity strength was normal and sensation intact.  Straight leg raising maneuver was negative for radicular signs.

A memo dated 9 May 2002, from the Chief of Spine Surgery, reported the CI suffered from moderate back pain with chronic recurrent exacerbations.  At the VA Compensation and Pension (C&P) examination on 24 July 2002, 3 months prior to separation, the CI reported chronic LBP radiating into the right leg as a result of a 1997 parachute jump.  On examination, posture and gait were normal.  There was no spine deformity, altered contour, spasm or tenderness.  The back flexed to 95 degrees, extended to 35 degrees, laterally flexed to 40 degrees bilaterally, and rotated 55 degrees bilaterally.  Strength was normal (5/5).

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20% (coded 5299-5293, analogous to intervertebral disc syndrome) citing moderate recurrent attacks.  The VA rated the back condition 10% (coded 5293-5292; intervertebral disc syndrome - limitation of lumbar spine motion) citing slight limitation of motion.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board notes that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in September 2003.  The Board must correlate the above clinical data with the 2002 rating schedule (applicable diagnostic codes include: 5292 [limitation of lumbar spine motion]; 5293 [intervertebral disc syndrome] based on incapacitating episodes; and 5295 [lumbosacral strain]).  The Board noted there was no more than slight limitation of motion at the time of examinations proximate to separation supportive of a 10% rating (5292 [limitation of lumbar spine motion]).  The PEB rated the back condition 20% analogously to 5293 (intervertebral disc syndrome) citing moderate symptoms with recurring attacks.  All Board members agreed, the condition was not characterized as severe warranting a higher rating under this code based on the guidelines in effect at the time of the PEB adjudication.  The Board noted that VASRD diagnostic code 5293 was changed effective in September 2002 prior to the CI’s separation, to rate based on incapacitating episodes defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  There was no evidence of such incapacitating episodes and the CI’s back condition would not attain a minimum rating under the updated guidelines for 5293 that became effective prior to his separation.  When considered under VASRD code 5295 (lumbosacral strain), a 10% rating is attained for characteristic pain on motion.  However, the higher ratings of 20% (muscle spasm on extreme forward flexion, loss of lateral spine motion) and 40% (severe, with listing to opposite side, marked loss of forward bending, loss of lateral motion) are not supported by the evidence of the record.  The VASRD in effect at the time of the CI’s separation also provided for an additional 10% rating for residual of vertebral fracture (5285) when there was a demonstrable deformity of vertebral body.  However, in this case, the vertebral body was not involved.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had radiating pain attributed to the narrowing of the neural foramen due to the spondylolisthesis; however, examinations indicated normal strength, sensation and gait and provocative examination maneuvers for radicular signs were absent.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic back pain with radiculitis condition.

Bilateral Plantar Fasciitis Condition.  According to the orthopedic MEB NARSUM, the CI experienced problems with plantar fasciitis since 1995 which was treated with arch supports.  Treatment records document the CI passed the physical fitness test with top scores including the 2- mile run in December 1997, February 1998, October 1998, August 1999, March 2000 and November 2000.  In March 2000 and November 2000, the CI completed the 2-mile run in 13 minutes (13:07 and 13:30 respectively).  The CI reported his symptoms had increased in the 2 years prior to the MEB NARSUM of March 2002.  A physical therapy note on 13 June 2001 recorded complaint of plantar fasciitis for 8 years.  On examination, the CI’s gait was normal.  A permanent L2 profile was issued by his physician in July 2001, limiting formation running and ruck-marching.  However, the profile indicated the CI could continue to run at his own pace and distance and perform the 2-mile run for the physical fitness test.  The CI passed the physical fitness test on 7 September 2001, completing the 2-mile run in 15 minutes, 9 seconds, a slower time than in the past but still attaining a high score.  At the time of the MEB orthopedic NARSUM examination on 25 March 2002, the CI reported his plantar fasciitis pain had gone away due to not running, ruck-marching or prolonged standing since he received the L2 profile in July 2001.  On examination, the orthopedic surgeon recorded there was no tenderness to palpation of feet.  A podiatry evaluation on 3 May 2002 recorded report of 10 years of constant pain in both feet.  On examination, there was full motion but tenderness of both feet with palpation was noted.  X-rays of the feet on 3 May 2002 were normal.  At the VA C&P examination on 24 July 2002, 3 months prior to separation, the CI reported bilateral plantar pain worse in the morning and with prolonged walking.  On examination, the CI’s gait was normal, and the CI was able to walk in heels and toes without difficulty.  The joints of both feet were stated to be normal with full ROM.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral plantar fasciitis condition 0% (coded 5399-5310; analogous to muscle Group X which includes the plantar aponeurosis) noting that symptoms had waxed and waned over the years, and had subsided with activity modification.  The VA rated the bilateral plantar fasciitis 0% (coded 5276; analogous to acquired flatfoot) citing absence of pain or functional impairment at the time of the C&P examination.  There is not a specific VASRD code for plantar fasciitis and the Board considered rating under alternate codes used by the PEB (5310) and VA (5276).  The Board noted that despite 10 years of symptoms, the CI performed his duties and passed the 2 mile run for the physical fitness test with excellent scores through the last documented test in September 2001.  At the time of the MEB NARSUM, the symptoms were reported to have resolved with avoidance of running, ruck marching and prolonged standing.  While there was some impairment in strenuous military duties, the evidence does not reflect impairment in the average civilian occupation (VASRD §4.1) supporting the 0% rating adjudicated by both the PEB and the VA under the respective VASRD diagnostic codes (5310, slight; and 5276, mild).  The next higher rating of 10% requires moderate impairment under both codes that was not reflected in the treatment records and examinations.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral plantar fasciitis condition.

Contended PEB Condition.  The PEB determined the mild hypertension condition was not unfitting.  The Board’s main charge is to assess the fairness of the PEB’s determination that the mild hypertension condition was not unfitting.  The Board’s threshold for countering fitness determinations is a preponderance of evidence.  The CI was noted to have high blood pressure in the fall of 2001 and was subsequently started on medication in January 2002.  There were no complications or physical limitations related to the hypertension.  The hypertension condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The hypertension condition was reviewed and considered by the Board.  There was no performance based evidence from the record that the condition interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the hypertension condition and so no additional disability rating are recommended.
BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  In the matter of the chronic back pain with radiculitis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral plantar fasciitis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypertension condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120607, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20140020543 (PD201200968)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA