RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201314 SEPARATION DATE: 20020425 BOARD DATE: 20130213 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Specialist/E-4 (27D10/Legal Specialist), medically separated for right upper quadrant (RUQ) abdominal pain of unknown etiology; and plantar fasciitis and heel spurs with a right calcaneous stress fracture. The CI had sudden onset of RUQ abdominal pain in September 2000. After extensive evaluations and treatments by various specialists, they were unable to find a definitive source for her persistent pain. The CI’s feet began hurting during Basic Combat Training in 1998. Multiple attempts at conservative treatment failed to provide relief. The CI could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent P3/L3 profile and referred for a Medical Evaluation Board (MEB). The MEB also identified and forwarded mild stress incontinence, identified in the rating chart below, as being a “non-boardable condition meeting retention standards.” The Informal Physical Evaluation Board (IPEB) adjudicated RUQ abdominal pain as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The IPEB noted, “Symptomatic pes planus with heel spurs and plantar fasciitis, Existed Prior to Service (EPTS) (moderate pes planus on enlistment physical dated 25 Oct ’97). Became symptomatic in basic training, no evidence of permanent service aggravation.” The IPEB did not rate the foot condition. The CI appealed to the Formal PEB (FPEB). The FPEB noted, “Plantar fasciitis, heel spurs with stress fracture of right calcaneous reported on scan in 1998. Rated as periostitis without loss of motion, in congenital flexible pes planus foot.” Additionally, the FPEB listed the foot condition as being permanently service aggravated and rated at 0%. The CI appealed the FPEB determination and the US Army Physical Disability Agency (USAPDA) upheld the FPEB adjudication and the CI separated with a combined 10% disability rating. CI CONTENTION: “Disability has been more disabling than originally anticipated. I’ve seen VA consistently & have asked to be re-evaluated without success.” 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 and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. Ratings for unfitting conditions will be reviewed in all cases. The rated, unfitting conditions RUQ abdominal pain and foot conditions, and the mild stress incontinence condition as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview. Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the service Board for Correction of Military Records. RATING COMPARISON: Service FPEB – Dated 20020205 VA Exam (one day pre-sep) All Effective Date 20020426 Condition Code Rating Condition Code Rating Exam RUQ Pain 8799-8719 10% Abdominal Adhesions w/ Chronic Abdominal Pain 8799-8719 10% 20020424 Plantar Fasciitis, Heel Spurs with Right Calcaneous Stress Fracture 5099-5022 0% B/L Pes Planus w/ B/L Plantar Fasciitis 5276 10% 20020424 B/L Heel Spurs 5015 10% 20020424 Mild Stress Incontinence Not Unfitting Stress Incontinence 7599-7512 40% 20020424 .No Additional MEB/PEB Entries. Rt Knee Patellafemoral Syndrome 5099-5014 10% 20020424 Lumbosacral Strain 5295 10% 20020424 Residuals, Femoral Shaft Stress Fracture w/ Lt Leg Pain 5299-5255 10% 20020424 Residuals, Femoral Shaft Stress Fracture w/ Rt Leg Pain 5299-5255 10% 20020424 Tinnitus, Lt Ear 6260 10% 20020424 0% X 4 / Not Service-Connected x 3 20020424 Combined: 10% Combined: 80% ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the broadly stated increased disabilities with which her service-incurred conditions continue to burden her. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. 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. That role and authority is granted by Congress to the Department of Veteran Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximate to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of fitness decisions and rating determinations for disability at the time of separation from military service. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short the member’s career; and the Board’s assessment of fitness determinations is premised on the MOS-specific functional limitations in evidence at the time of separation. The Board’s main charge with respect to the remaining contended condition identified by the PEB is therefore an assessment of the fairness of the determination that it was not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The condition falling into this category is mild stress incontinence. Right Upper Quadrant (RUQ) Abdominal Pain Condition. The record indicates the CI was right handed. The narrative summary (NARSUM), 4 months prior to separation, noted that the CI developed RUQ abdominal pain in September 2000 which persisted despite numerous evaluations and treatment modalities. Extensive radiology and laboratory work-ups were normal. Abdominal organic pathology was ruled out. The CI was eventually referred to pain management for nerve block injections for suspected neuropathic pain. One service treatment record (STR) note did list the possible etiology as sequalea from an un-diagnosed non-rash presentation of shingles. Despite pain management injections, the CI’s pain was unresolved and a diagnosis of Allodynia was determined. The MEB examination noted the CI’s abdomen was soft and tender to both superficial and deep palpation in the RUQ; “otherwise negative.” A medical statement from the CI’s physician to the PEB, 3 months prior to separation, indicated the CI had intercostal neuralgia with symptoms that were severe and refractory to treatment. At the VA Compensation and Pension (C&P) examination, a day prior to separation, the CI reported constant RUQ pain extending to her back and aggravated with movement and described as 7/10 pain scale. The C&P examination revealed a soft abdomen with direct tenderness to the right upper, middle, and lower quadrants as well as the left lower quadrant. A medical statement from the CI’S physician to the FPEB, 3 months prior to separation, indicated the CI had intercostal neuralgia with severe symptoms refractory to treatment. The Board directs attention to its rating recommendation based on the above evidence just described. Both the FPEB and VA coded the CI’s RUQ pain condition as 8799-8719 (neuralgia; long thoracic nerve) at 10%. Although the FPEB and the VA had slightly different disability descriptions, it had no bearing on the rating. It’s appropriate for such a condition to be rated analogous to a disability where anatomical localization and symptoms are closely related. Having persistent RUQ pain as well as a diagnosis of intercostal neuralgia appropriately relates to VASRD code 8719. The CI’s serial examinations revealed pain as the dominating symptom and more often than not, the pain remained in the RUQ. There was no evidence of decreased ROM in her right upper extremity and it was listed as “normal” on physical exam. There was no evidence of pulmonary symptoms or organic changes to the chest wall or abdomen, or gastrointestinal/bowel complaints. There was no evidence of muscle weakness or paralysis. The Board considered the provisions of VASRD §4.123 (Neuritis, cranial or peripheral) and §4.124 (Neuralgia, cranial or peripheral). The most closely related analogous code of 8799- 8719 (neuralgia; long thoracic nerve) was adjudged appropriate. IAW VASRD §4.123 the highest rating level, absent organic changes, is “moderate” (10% under code 8719). 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 FPEB adjudication for the RUQ abdominal pain condition. Plantar Fasciitis, Heel Spurs with Right Calcaneous Stress Fracture Condition. The FPEB combined plantar fasciitis, heel spurs, and right calcaneous stress fracture as a single unfitting rated condition, coded analogously to 5099-5022 at 0%. Although this approach complies with AR 635.40 (B.24 f.), the Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting and that there was no need for separate fitness adjudications; not a judgment that each condition was independently unfitting. Thus the Board exercises the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. The Board’s analysis and recommendations regarding the separate fitness issue and potential separate rating for each condition entrained in the PEB’s combined rating approach is addressed. At the CI’s entrance physical, she was noted to have mild asymptomatic pes planus (flat feet). During basic training, she developed bilateral foot pain with activity. Over the next 4 years of military service she was treated with a variety of interventions including anti-inflammatory and pain medication, ice, rest, physical therapy, orthotics and consultations with orthopedics, and podiatry. The CI was diagnosed with symptomatic (congenital) pes planus and plantar fasciitis and placed on permanent profile. At the MEB examination the CI reported painful feet which throb and tingle upon “taking first steps.” Pain and numbness of this nature is very consistent, if not absolute for the diagnosis of plantar fasciitis. The MEB examination revealed a pronated stance and palpatory pain on the bottom of the foot and inside the heel. The examiner also stated that the CI’s condition, “…prevents the wearing of military footwear.” There was no evidence of abnormal areas of pressure nor callous on her feet. The podiatrist’s “Rebuttal for PEB Findings” discussing the CI’s diagnoses’ underlying pathology and etiology was considered in-depth. At the C&P examination, the CI reported constant bilateral foot pain, aggravated by prolonged walking and standing or after any period of prolonged inactivity. Examination reveals loss of the longitudinal arch with tenderness on the bottom of both feet and heels. There was no tenderness, swelling, or abnormal findings with the Achilles tendon nor fatigability, incoordination or weakness of either foot on examination. There was normal bilateral ankle range-of-motion (ROM). The CI reported frequent (usually bilateral) heel pain on many examinations. The CI had two separate bone scans performed; one in March 1998 revealed a minor calcaneal stress fracture and another in February 2000 was normal. The STR reveals at least three radiologic examinations that showed the presence of bilateral heel spurs. The 2002 X-ray of a heel spur was an incidental finding while performing an ankle evaluation. The X-rays in 2000 were taken for “painful feet, especially the forefoot.” Pain of this nature in the forefoot (aka… the “ball” of the foot) is consistent with metatarsalgia. The CI was diagnosed with metatarsalgia as well as plantar fasciitis. The STR examination dated 4 June 2001 revealed forefoot and plantar tenderness consistent with both diagnoses. However, the preponderance of clinical examinations indicated, more often than not, generalized plantar foot pain not necessarily confined to the forefoot, thus indicating that the plantar fasciitis was the primary and predominating condition and the presence of bone spurs was due to the plantar fasciitis condition. The Board directs attention to its rating recommendation based on the above evidence. The Board first considered whether each foot condition remained separately unfitting, having decoupled them from the combined FPEB adjudication. The Board discussed separate left and right heel spurs, right calcaneal fracture, and right and left plantar fasciitis conditions. The Board determined that the separate conditions within each foot (plantar fasciitis and heel spurs [and calcaneal fracture on the right]) were not independently unfitting, but that the disability contribution of each condition to each foot could not be separated from the unfitting plantar fasciitis condition. There is not a specific code for plantar fasciitis with heel spurs. The Board next considered if a VASRD-compliant bilateral code was applicable, or if the unfitting left foot and unfitting right foot conditions rated separately better depicted the CI’s disability condition IAW VASRD §4.7 (higher of two evaluations). The Board majority determined that each foot was reasonably separately unfitting and ratable. The Board considered analogous coding of 5022 (Periostitis), 5276 (flat foot, acquired; unilateral or bilateral); 5278 (Claw foot (pes cavus), acquired), 5279 (metatarsalgia, unilateral or bilateral); 5284 (foot injuries, other, moderate); 5310 (muscle group X); 5022 (Periostitis). Board deliberations focused on coding of 5276 for bilateral feet at 10%, or 5299-5284 at 10% for the right foot and 10% for the left foot. The Board majority agreed that painful motion, the underlying pathology and disability picture better supported the 5299-5284 10% rating for each foot condition. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends an unfit right foot condition coded 5299-5285 at 10% and an unfit left foot condition coded 5299-5285 at 10%. Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the mild stress incontinence condition was not unfitting. Although the CI reported frequent awakenings at night to urinate, as well as leaking urine with exercising, sneezing, and coughing as per the C&P examination, there was no documented evidence that her urinary stress incontinence prohibited the performance of those duties required of her MOS. The stress incontinence condition was not profiled nor judged to fail retention standards. All documents were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that indicated the mild stress incontinence condition significantly interfered with satisfactory performance of military duty. After due deliberation in consideration of the preponderance of evidence, the Board’s consensus was that there was no citable evidence which would challenge the FPEB’s fitness conclusion; and, there were no clinical features or specific functional limitations which would render the mild stress incontinence condition inherently unfitting. Therefore, no additional disability rating can be 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 RUQ pain condition, the Board concluded that this condition could not be recommended for an additional disability rating and IAW VASRD §4.71, the Board unanimously recommends no change in the FPEB adjudication. In the matter of the plantar fasciitis, heel spurs with stress fracture of the right calcaneus condition, the Board, by a vote of 2:1, recommends that each foot be separately adjudicated for a disability rating and a change in the VASRD code. It recommends an unfitting right plantar fasciitis, heel spurs with stress fracture right calcaneus condition coded 5299-5284 and rated 10%; and, an unfitting left plantar fasciitis, heel spurs left foot condition coded 5299-5284 and rated 10%, both IAW VASRD §4.73. The single voter for dissent (who recommended code 5276 at 10% for the bilateral plantar fasciitis, heel spurs condition) did not elect to submit a minority opinion. In the matter of the contended mild stress incontinence condition, the Board recommends no change from the FPEB determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows and that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation: UNFITTING CONDITION VASRD CODE RATING Right Upper Quadrant (RUQ) Pain 8799-8719 10% Plantar Fasciitis, Heel Spurs with Stress Fracture of Right Calcaneus 5299-5284 10% Plantar Fasciitis, Heel Spurs Left Foot 5299-5284 10% COMBINED (Incorporating BLF) 30% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120619, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxx, AR20130003949 (PD201201314) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay. b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay. d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)