RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00184
BRANCH OF SERVICE:  Army	BOARD DATE:  20150416
Separation Date:  20060314

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Trainee) medically separated for bilateral thighs, ankles, and foot pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “bilateral leg, ankle and foot pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, and no other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic pain bilateral thighs, ankles, and feet…”as unfitting, rated 10%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in her 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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20060202 | VA* - (~8 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Pain Bilateral Thighs, Ankles, and Feet | 5099-5003 | 10% | Chronic Right Ankle Sprain… | 5271 | 10% | 20061107
| | | Chronic Left Ankle Sprain… | 5271 | 10% | 20061107
| | | Bilateral Pes Planus with Plantar Fasciitis | 5276 | 10% | 20061107
Other x0 | Other x4
RATING:  10% | RATING:  30%
*Derived from VA Rating Decision (VARD) dated 20061221 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The PEB combined the bilateral thighs, ankles and foot conditions under a single disability rating, coded analogously to 5003 and applied the USAPDA pain policy.  This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 (E3, 4.d) the VASRD is used “along with all applicable statutes and any directives in effect at the time of the contested separation (to the extent they do not conflict with the VASRD in effect at the time of the contested separation).”  The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the bilateral thighs, ankles and foot conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Chronic Pain Bilateral Thighs Condition.  The Board first considered if the bilateral thigh condition, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above.  The Board noted that the CI was profiled for the bilateral thigh condition and that the MEB identified it as “…fails retention standards.”  The commander’s statement identified only the bilateral ankle condition as “preventing her from performing the basic tasks of her MOS and of Soldering, including using and carrying a weapon and gear during a deployment.”  In arriving at its fitness related recommendation, the Board considered the commander’s statement as the most probative document related to duty impairment.  The clinical data supports that proximate to separation, the bilateral thigh condition was minimally symptomatic.  Additionally, after separation, the VA did not consider any thigh condition as a ratable disability.  After due deliberation, Board members agreed that the evidence does not support a conclusion that the functional impairment from the bilateral thigh condition as considered separately from the CI’s other impairments, was integral to the CI’s inability to perform her training duties; and, accordingly cannot recommend a separate rating for it.

Chronic Pain Bilateral Ankles Condition.  The Board first considered if the left and right ankle condition, having been de-coupled from the combined PEB adjudication, each remained independently unfitting.  The Board noted that the CI was profiled for the bilateral ankle condition and that the MEB identified it as “…fails retention standards.”  The commander’s statement identified the bilateral ankle condition as “preventing her from performing the basic tasks of her MOS and of Soldering, including using and carrying a weapon and gear during a deployment.”  Members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform her training duties; and, accordingly a separate rating is recommended.

The CI thought that she twisted her ankles during training activities in October 2004.  She was seen in Medical Clinic for worsening of bilateral pain ankle.  There were physical exam findings of pain with ambulation, an “uncomfortable” appearance, bilateral malleoli discomfort and painful weight bearing.  A bone scan showed mild uptake at both medial malleoli and right navicular consistent with stress fractures.  The medical provider noted minimal bilateral ankle swelling that had responded well to ice and elevation with tenderness to the left distal tibia and bilateral distal fibula.  Two and a half months later, a repeat bone scan showed that the prior lesions at the medial malleoli were healed and the right navicular lesions were significantly improved.  The physical therapist (PT) noted bilateral deep throbbing ankle pain with pain rated at 2/10 at rest and 4/10 with running and prolonged standing.  The X-rays of the right ankle and left ankle were normal.  The primary care provider noted that the bilateral ankle pain was precipitated by wearing shoes and made worse with standing, walking jumping and bending the foot down, there was no improvement during exercise and did not feel better after normal movement.  The MEB narrative summary (NARSUM) exam 3 months prior to separation documented that the CI was having difficulty wearing her military boots secondary to foot and ankle pain.  The pain was aggravated by prolonged standing, running and walking.  She was unresponsive to therapy which included crutches, medications and PT.  The VA Compensation and Pension (metatarsophalangeal) exam approximately 8 months after separation documented that the CI reported constant localized crushing, squeezing, burning sharp sticking and cramping pain in both ankles with the pain rated at 10.  The pain was made worse by physical activity and standing.  The functional impairment was pain with prolonged standing and walking.

There were three evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Ankle ROM (Degrees) | PT 3.5 Mos. Pre-Sep | MEB 3 Mos. Pre-Sep | VA C&P ~8 Mos. Post-Sep
| Left | Right | Left | Right | Left | Right
Dorsiflexion (20 Normal) | 10 | 10 | ROM’s used from PT exam | 20 | 20
Plantar Flexion (45) | 41 | 39 | | 45 | 45
Inversion (45) | 12 | 20 | | |
Eversion (25) | 20 | 18 | | |
Comment | No painful motion; Normal gait | | Tenderness and pain with toe raises and walking
| | Pain with ambulation |
§4.71a Rating | - | - | 10% | 10% | 10% | 10%

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic pain bilateral thighs, ankles, and foot conditions as 5099 analogous to 5003 (degenerative arthritis) and rated at 10% with application of the USAPDA pain policy.  The VA coded the chronic right ankle sprain and chronic left ankle sprain condition separately as 5271 (limited motion of ankle) and rated each separately at 10% for “moderate.”  As noted above, there are no unilateral distinctions with regards to clinical features or fitness considerations.  It is speculative to conclude that the disability confined to a single ankle would have rendered the CI incapable of continued training; and it is reasonable to surmise that it was the pain in both ankles that rendered her unfit.  Furthermore, the bilateral diagnosis supported a single 5003 based rating for “2 or more major joints”; thus there is VASRD §4.71a latitude for a bilateral rating.  Members agreed that there were insufficient grounds for recommending separate right and left ankle disability ratings in this case.  The MEB examiner noted limited ROM and pain with ambulation.  The Board also considered the data documented by PT that showed a normal gait without painful motion on the ankles at the time of examination.  VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion.”  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 chronic pain bilateral ankle condition coded 5099-5003.

Chronic Pain Bilateral Foot Condition:  The Board first considered if the bilateral foot condition, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above.  The Board noted that the CI was profiled for the bilateral foot condition and that the MEB identified it as “…fails retention standards.”  The Board noted that the CI had “mild asymptomatic pes planus” documented on her entrance physical exam.  Although the bilateral foot condition was not identified by the commander as causing duty limitation, the Board noted ample treatment record evidence of aggravation of her pes planus that was not relieved by treatment.  After considerable deliberation, Board members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to continue training; and, accordingly a separate Service rating is recommended.

The CI developed problems with her feet during Basic Training which was in October 2004.  The PT documented that the CI wore tennis shoes to reduce the pain from ambulation.  There were physical exam findings of pain at the extreme limits of ROM of both feet.  The Bone Scan showed minimal uptake at the left 1st metatarsophalangeal joint consistent with either mild overuse or possibly early degenerative type changes.  The primary provider noted chronic bilateral lower extremity pain (overuse syndrome/flat feet) and physical exam findings of bilateral pes planus.  The CI was sent to the Orthotics lab for one pair of arch supports for her shoes.  The CI reported to medical with an episode of bilateral foot spasms and she was unable to get her feet into her boots.  The MEB NARSUM exam 3 months prior to separation documented that the CI’s was having difficulty wearing her military boots secondary to foot and ankle pain.  The pain was aggravated by prolonged standing, running and walking and was unresponsive to therapy which included crutches, orthotics, medications, and PT.  The physical exam findings were bilateral pes planus. The VA C&P exam approximately 8 months after separation documented that the CI reported constant localized crushing, squeezing, burning sharp sticking and cramping pain in the bottom of both feet.  She rated the pain at 10 and required rest and medication for pain relief.  The functional impairment was pain with prolonged standing and walking.  Bilateral weight bearing foot X-rays showed pes planus.  The physical exam findings were bilateral pes planus, a slight degree of valgus which could be corrected by manipulation; forefoot/midfoot malalignment which could be corrected by manipulation; deformity of the medial tilting of the upper border of the talus; and slight tenderness of the plantar surface.  There was no marked deformity (pronation, abduction, etc.), indication of swelling on use, or characteristic callosities.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic pain bilateral thighs, ankles, and feet conditions as 5099 analogous to 5003 and rated at 10% with application of the USAPDA pain policy.  The VA coded the bilateral pes planus with plantar fasciitis condition as 5276 (acquired Flatfoot [pes planus]) and rated at 10%.  All evidence present for review documents symptomatic pes planus that did not respond to treatment which is consistent with moderate pes planus (unilateral or bilateral) under VASRD code 5276.  There was no evidence of swelling or characteristic callosities as required for the severe rating.  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 chronic pain bilateral foot coded 5299-5276.  The Board noted this condition was existed prior to service, was not acquired, but was aggravated due to the CI’s service.

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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the chronic pain bilateral thighs, ankles, and foot condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic pain bilateral ankles condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the chronic pain bilateral foot condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5276 IAW VASRD §4.71a.  In the matter of the bilateral thigh condition, the Board unanimously agrees that it was not separately unfitting and cannot recommend it for additional disability rating.  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 her prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Pain Bilateral Ankles | 5299-5003 | 10%
Chronic Pain Bilateral Foot | 5299-5276 | 10%
Chronic Pain Bilateral Thighs | Not Unfitting
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131227, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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, AR20150013279 (PD201400184)

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 20% 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-2014-00184