RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01735
BRANCH OF SERVICE:  Army	BOARD DATE:  20141015
SEPARATION DATE:  20050306

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (15T/Helicopter Repairer) medically separated for bilateral plantar fasciitis.  The bilateral plantar fasciitis could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  His profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “Bilateral feet: chronic plantar fasciitis, refractory to medical treatment” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions.  The Informal PEB adjudicated “bilateral foot pain secondary to plantar fasciitis without significant arch abnormalities” as unfitting, rated 0%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Bilateral plantar fasciitis still pain and tender after 8 years of treatment now effecting (sic) the low back.  Also diagnosed with PTSD.”

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 rating for the unfitting bilateral plantar fasciitis condition is addressed below.  The requested low back condition, which was determined to be not unfitting by the PEB, is likewise addressed below.  The requested posttraumatic stress disorder condition was not identified by the MEB or PEB and is not within the DoDI 6040.44 defined purview of the Board.  The pes planus condition was not requested.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 IPEB – Dated 20041223 | VA - (1 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Bilateral Foot Pain Secondary to Plantar Fasciitis | 5399-5310 | 0% | Bilateral Plantar Fasciitis | 5299-5276 | 10% | 20050202
Pes Planus | Not Unfitting | No VA Entry
Low Back Pain | Not Unfitting | Low Back Strain | 5237 | 20%* |
Other x 0 (Not in Scope) | Other x 2 | 20050202
Rating:  0% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20050202 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System 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 Veterans Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The VA Compensation and Pension (C&P) examination, performed on 2 February 2005, was not available in evidence before the Board and could not be located after appropriate inquiries.  Further attempts at obtaining the relevant documentation would likely be futile.  The Board further noted that the VARD performed on 1 April 2005, referenced in detail the results of this exam in the explanation of its rating decision.  The Board unanimously agreed that the evidence referenced in the available VARD was sufficiently probative such that the missing document would not materially affect the Board’s final recommendations.  The PEB received the combined right and left feet conditions from the MEB and rated it as a single entity.  The Board’s initial charge in this case was, therefore, directed at determining if the PEB’s approach of rating the condition as a single entity was justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW applicable VASRD sections.  If the Board judges that separate ratings are warranted in such cases, however, it must satisfy the reasonable requirement that each “unbundled” condition was unfitting in and of itself or at least an indispensable element of a combined effect rating.  Since the foot conditions were evaluated together on most clinical examinations, the Board will discuss these conditions together, for economies of scale and then address fitting and rating decisions separately.

Bilateral Plantar Fasciitis.  The CI developed right heal pain with activity in January 2001.  In March 2001 he developed similar pain in his left foot.  X-rays at this time were normal and a diagnosis of plantar fasciitis was made.  The left foot condition was treated from 2001 until 2002 with multiple steroid injections and a temporary short leg cast.  In August 2001 and January 2002, the CI presented to the clinic with left leg and foot pain.  On podiatry evaluations performed in February 2002, both forefoot and arches were reported as normal.  In May 2002, the CI underwent an injection of the left heal for symptoms of pain.  Magnetic resonance imaging of the feet in September 2002 was reported as normal.  In March 2003 the CI deployed to Iraq returning in March 2004.  There are no service treatment records available for this period.  A podiatry consultation was performed for the narrative summary (NARSUM) on 10 November 2004.  On this evaluation, the CI reported running, standing greater than 30 minutes aggravated the pain in both feet, the left greater than the right.  On physical examination, gait was antalgic, left worse than right, with abduction and pronation of both feet.  Full range-of-motion of both feet and ankles was recorded with no mention of pain.  A mild decrease in the arch was noted.  No abnormality of the skin of either foot was present.  At the MEB/NARSUM exam performed on 7 December 2004, 4 months prior to separation, the CI reported pain in both feet with weight bearing activity.  He noted the ability to walk 1/2 mile before pain.  The records of VA C&P general exam dated, 2 February 2005, approximately a month prior to separation, were not available to the Board as discussed above.  The VARD, performed on 1 April 2005, quoted data from the C&P exam in its rating discussions.  The data quoted were: “CI not using a cane; mild relief with orthotics; antalgic gait favoring the left leg; pain when walking on heals worse on left, but no pain when walking on toes; no signs of abnormal weight bearing (calluses) on the bottom of the feet; tenderness to palpation along the right heel and left heal and left mid sole area.”
The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral foot condition 0%, code 5310 (Muscle Group X of the forefoot/slight) citing foot pain without loss of arch, or joint motion.  The next higher rating, 10%, requires the foot condition to be of “moderate” severity.  The VA rated the bilateral condition 10% code 5276, flat-foot acquired/moderate, citing antalgic gait, worse on the left and tenderness to palpation in both feet.  The next higher rating under this code, 20% for unilateral and 30% for bilateral, requires the condition to be “severe” with objective evidence of marked deformity with abnormal function (pronation, abduction), pain on manipulation and use accentuated, swelling on use and characteristic callosities.  The Board agreed that the record reasonably supported each foot condition to be separately unfitting as both were noted in the commander’s statement and the permanent profile.  The Board next undertook a rating decision for each foot condition.

Left Foot Condition.  The Board unanimously agreed the record in evidence to document the left foot condition to be more symptomatic than the right given the history of left foot injections, casting and findings of both NARSUM and referenced VA examination.  The Board first opined that no higher rating than 0% was achievable under code 5310.  The Board agreed the left foot condition rose to the level of 10% for painful motion IAW 4.71a analogous to code 5284 (Foot injury).  The Board noted the findings of pronation and abduction on gait evaluations for both NARSUM and VA exam and considered a rating of 20% under this code.  The Board unanimously agreed that it could not recommend this rating as no evidence of characteristic callosities or swelling on use were documented in the record.  The Board agreed that no higher rating than 10% could be recommended under codes 5278 or 5284. The Board found no other appropriate codes for consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left foot condition.

Right Foot Condition.  The Board agreed that the right foot condition to be less symptomatic than the left. The Board agreed that no higher rating than 0% could be recommended under code 5284.  The Board unanimously agreed that, although some pain on motion was present, this did not rise to the level of 10% IAW 4.71a.  The Board considered a rating under code 5276, for pronation and abduction on gait, as above, but was unable to recommend this given the absence of callosities and swelling on examination.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% IAW §4.31 for the right foot condition.

Contended Back Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that back condition 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 record notes the CI to have had intermittent and occasional episodes of low back pain.  The back condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  This was reviewed by the action officer and considered by the Board.  There is no evidence in the record of emergent clinic or emergency department visits, hospitalization admissions or episodes of incapacitation for the back condition.  There was no performance based evidence from the record that this condition significantly 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 contended back condition and so no additional disability rating is 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the left foot condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5284 IAW VASRD §4.71a.  In the matter of the right foot condition, the Board unanimously recommends a disability rating of 0%, coded 5299-5284 IAW VASRD §4.71a and §4.31.  In the matter of the contended back condition, the Board unanimously recommends no change from the PEB 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Left Foot Pain Secondary to Plantar Fasciitis | 5299-5284 | 10%
Right Foot Pain Secondary to Plantar Fasciitis | 5299-5284 | 0%
COMBINED (w/ BLF) | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131022, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150006983 (PD201301735)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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			     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-01735