RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX	CASE:  PD-2013-02563
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141210
SEPARATION DATE:  20040615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Rifleman) medically separated for bilateral foot conditions.  The conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards.  He was placed on limited duty [LIMDU] and referred for a Medical Evaluation Board (MEB).  The foot conditions, characterized as “heel spur syndrome and plantar fasciitis” and “gastroc-soleus equinus,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded two other conditions for PEB adjudication.  The Informal PEB adjudicated the “heel spur syndrome and plantar fasciitis,” and “gastroc-soleus equinus, left lower extremity” as unfitting, rated 10% and 10% with application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions (bilateral Achilles tendinitis and hammer toe deformity) were determined to be Category II (related, contributing to unfitting condition).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no contention in his application.

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 foot conditions (with consideration of the related Category II conditions) are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Naval Records.

RATING COMPARISON:

Service IPEB – Dated 20040401	VA* – Based on Service Treatment Record (STR)**	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Heel Spur Syndrome and Plantar Fasciitis Right	5099-5279	10%	Heel Spur Syndrome, Right	5273	NSC	STR	
			Plantar Fasciitis, Right	5099-5020	NSC	STR	
			Plantar Fasciitis, Left	5099-5020	NSC	STR	
Gastroc-Soleus Equinus, Left Lower Extremity	5099-5003	10%	Gastroc Soleus Equinus, Left Lower Extremity	5311	NSC	STR	
Continued Hammer Toe Deformity, Right Foot	CAT II	Hammer Toe Deformity Right	5282	NSC	STR	
Bilateral Achilles Tendinitis with
Gastroc-Soleus Tendinitis	CAT II	Achilles Tendonitis with Gastroc Soleus	5024-5284	NSC	STR	
		Left Ankle Disability	5271	NSC	STR	
Other x 0 (Not in Scope)	Other x 0	
Combined:  20%	Combined:  0%	
*Derived from VA Rating Decision (VARD) dated 20071029 (~41 months post-separation)
** No VA compensation and pension exam performed

ANALYSIS SUMMARY:

Right Foot/Lower Extremity Condition (Heel Spur, Plantar Fasciitis, Hammer Toe, Achilles and Gastroc-Soleus Tendinitis).  The service treatment record (STR) contains a routine exam entry from 1997 (same year as enlistment) documenting hallux valgus (bunion deformity of the big toe); and, a clinic note from the same year noting a 4-month history of bilateral foot pain.  An entry from October 1998 documents a continued complaint of bilateral foot pain diagnosed as plantar fasciitis; and, in 2001 there are a series of entries from podiatry addressing a complaint of right foot pain.  The latter culminated in surgical intervention for the right foot in April 2001, consisting of gastroc-soleus (calf muscle) lengthening, calcaneal osteotomy with screw fixation (for heel spur), and bunionectomy at the first (big toe) metatarsophalangeal (MTP) joint.  Right foot pain persisted, diagnosed as plantar fasciitis with recurrent bunion and heel pain; and, in October 2003 a second surgery was performed (repair and fixation with adductor [foot muscle] release for the hallux deformity, and plantar fasciotomy [release] for the fasciitis).  A post-operative note 2 months later notes “well healed” surgery and “good, pain-free ROM [range of motion].”  X-ray findings from this period noted a heel spur and degenerative arthritis of the MTP joint in addition to surgical changes.

The narrative summary (NARSUM) was conducted on 30 December 2003 (3 weeks after the above post-operative note), and there is no evidence from the subsequent 6 months to separation.  The NARSUM documented current symptoms of right big toe pain “chronic ... aggravated by activity and shoe gear,” right heel pain, and calf pain (rated 9/10) that was “aggravated by activity and it lingers for four to five days after cessation of the activity.”  Limitations were imposed on “running, walking or any high impact activity,” lifting over 30 pounds, standing longer than 30 minutes, and accommodating non-regulation foot wear as needed.  The physical exam made no comment regarding gait (nor is there any contemporaneous STR evidence for same).  Tenderness was noted of the right heel, Achilles tendon, plantar fascia, and calf.  Dorsiflexion at the right ankle was 15-20 degrees (normal 20) and ROM at the MTP (big toe) was normal but “guarded,” the hallux deformity was much improved (no encroachment of the big toe over neighboring toes); and, there was hammertoe deformity of the remaining digits.  Weakness of the right calf (Graded 3/5) was also noted.  The commander’s non-medical assessment (NMA), 3 months prior to separation noted that the CI “continues to accomplish his job ... without difficulty and can PT at his own pace” and endorsed continued service in an alternate MOS.  As noted above, there was no temporally probative VA examination or other post-separation evidence in this case.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition analogously under 5279 (metatarsalgia) which provides for a maximum rating of 10%, under which it subsumed all of the related diagnoses elaborated above as well as the category II hammertoe condition.  The VA denied service-connection of all of the CI’s foot conditions; stating in the rating decision that further evidence was sought and not forthcoming, and that objective evidence supporting each specific diagnosis (claim) was not sufficiently established in “available service medical records.”  It is clear that there are various related diagnoses contributing to the disability in this case; and, members first agreed that there were not separate conditions (including the subsumed category II hammertoe condition) which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding).  The Board thus deliberated the fairest coding and rating recommendation for the condition which would best reflect the overall disability attributable to the right foot.  There are only two alternate coding options under VASRD §4.71a which are reasonably considered as applicable and which could achieve a rating higher than the 10% offered by the PEB adjudication.  One of these is analogously under the muscle code 5310 (Group X, encompassing foot functions) which is a common analogous choice for plantar fasciitis; and, offers a 20% rating for “moderately severe” and 30% for “severe” disability.  The other considered option is analogous to 5284 (foot injuries, other) which also offers 20% and 30% ratings for “moderately severe” and “severe” impairment respectively.

Members agreed that rating under a muscle code comports with both the pathology and functional impairment of the condition, especially considering the underlying calf muscle pathology and surgery.  The VASRD §4.56 (evaluation of muscle disabilities) rating for moderately severe (see 5310 ratings above) specifies “consistent complaint of cardinal signs and symptoms of muscle disability ... and, if present, evidence of inability to keep up with work requirements.”  The referenced cardinal signs and symptoms are “loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.”  Loss of power and weakness are demonstrated by the objective calf weakness in evidence; and, fatigue and pain are supported by the NARSUM description of protracted pain after activity.  The remaining cardinal signs are not supported, but all are not required by the rating language.  An inability to keep up with work requirements is reasonably conceded by the limitations on prolonged standing and other physical activities as elaborated in the NARSUM.  Member consensus was, therefore, that the §4.56 criteria for “moderately severe” were sufficiently satisfied.  Those for “severe” disability (citing objective findings not present) were considered, but not supported.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board’s consensus recommendation is a 20% rating for the right foot/lower extremity condition under code 5399-5310.

Left Lower Extremity Condition (Gastroc-Soleus Equinus, Achilles Tendinitis).  Although bilateral foot pain was referenced early in the STR (as above), all of the podiatry documentation and treatment notes were confined to the right foot as elaborated above.  There is no evidence specific to the left foot through the MEB period; it did not require surgical intervention; and, it appears to have arisen in the context of the NARSUM.  The initial MEB referral by podiatry (entry from July 2003) specified “for his right foot,” and all of the formal status and LIMDU reports from podiatry to the command stipulated that they were for the right foot condition.

The NARSUM ascribed 9/10 calf pain to “both calf muscles” with lingering pain after activity as elaborated for the right foot; but, did not ascribe any other complaints or limitations to the left foot (or leg).  The left calf was tender on exam, but less so than the right.  The examiner noted “persistent gastroc-soleus equinus” (anatomic misalignment which does not allow full dorsiflexion of ankle) with regards to left ankle ROM, but did not provide a measurement.  The physical exam noted “tenderness upon range of motion and palpation of both Achilles tendons” which reasonably equates to painful motion.  Left calf strength was mildly weak (graded 4/5).  The NMA evidence, as elaborated above, did not differentiate left foot impairment from overall impairment; and, as previously noted, there is no probative evidence after the NARSUM and separation.

The Board directed attention to its rating recommendation based on the above evidence.  Members first agreed that the subsumed (and clinically intertwined) Category II Achilles tendinitis condition is not a candidate for separate rating without reasonable justification as separately unfitting or being separately ratable without pyramiding.  The PEB’s 10% rating was under analogous 5003 (degenerative arthritis) criteria; and, without compensable ROM limitation, is justified by painful motion.  The only alternate §4.71a coding option which can be clinically justified and which might yield a rating higher than 10% is analogous 5399-5311 (Group XI, calf muscles); offering a 20% rating for “moderately severe” impairment and 30% for “severe.”  Members agreed, however, that the §4.56 criteria (as elaborated above) for a rating higher than 10% were not supported, given the absence of surgical intervention and documented cardinal signs and symptoms.  After due deliberation, considering the total evidence and mindful of reasonable doubt, members agreed that there was insufficient cause to recommend a change in the PEB adjudication of the left lower extremity condition.

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 right foot/lower extremity condition, the Board consensus recommends a disability rating of 20%, coded 5399-5310 IAW VASRD §4.71a.  In the matter of the left lower extremity condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Gastroc-Soleus Equinus with Multiple Right Foot Complications and Surgical Residuals, Right Lower Extremity 	5399-5310 	20%	
Gastroc-Soleus Equinus, Left Lower Extremity	5099-5003	10%	
COMBINED (w/BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130914, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

			
XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: 	(a) DoDI 6040.44
(b) PDBR ltr dtd 24 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 19 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 12 May 15 ICO XXXXXXXXXXXXXXXXXX
(e) PDBR ltr dtd 9 Jun 15 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a.	XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

b. XXXXXXXXXXXXXXXXXXXX, former USMC:  Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge. 

d. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 10 percent (increased from 0 (zero) percent) effective date of discharge.

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)