RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01976
BRANCH OF SERVICE:  Army	BOARD DATE:  20150204
SEPARATION DATE:  20070816

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1 (Infantry) medically separated for right foot and lower back conditions.  The right foot and lower back 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The right foot and lower back conditions, characterized as “low back pain with associated radiographic finding of multiple large Schmorl’s nodes” and “chronic right foot pain persistent after healing of stress changes of 3rd and 4th metatarsals,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one additional condition (intermittent resting tachycardia without chest pain, dyspnea or other symptoms) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “healing stress changes (periostitis) right foot 3rd and 4th metatarsals” as unfitting, rated 0%.  Additionally, the IPEB adjudicated “chronic lumbar degenerative changes with Schmorl’s nodes (protrusion of disc cartilage into vertebrae endplates) and osteophyte on the L4 vertebral body” as unfitting, but determined the condition existed prior to entry into the service and not permanently service aggravated; thus, did not rate the condition.  The intermittent resting tachycardia was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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:

Service IPEB – Dated 20070727	VA - (0.6 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Foot	5022	0%	Stress Fractures of Third and Fourth Metatarsals of Right Foot (Claimed as Chronic Right Foot Pain))	5022-5284	10%	20070730	
Chronic Lumbar Degenerative Disc Disease	5299-5242	EPTS w/o PSA	Chronic Lumbar Degenerative Changes with Schmorl’s Nodes and Osteophyte on the L4 Vertebral Body (Claimed as Low Back Pain)	5299-5242	NSC	20070730	
Intermittent Resting Tachycardia	Not Unfitting	Tachycardia	7099-7010	NSC	20070730	
Other x 0  (Not in Scope)	Other x 0	
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20071003 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:

Right Foot Condition.  The CI was initially seen on 28 February 2007 (about 5 weeks into Basic Training) for an ankle sprain of 2 days duration.  X-rays, to rule out “a fracture [secondary to an] inversion injury [while] on [a] road march,” were normal.  He was seen again on 7 March 2007 with right foot pain after running in spite of having been treated with a non-steroidal anti-inflammatory medication and a profile.  The right 2nd and 3rd metatarsal bones (of the mid foot) were tender to palpation.  An X-ray study of the right foot revealed faint periostitis (inflammation of the layer around the bone) involving the medial (inner) aspect of the 3rd and 4th metatarsals was interpreted as stress related changes.  On 28 March 2007, there was still tenderness of the metatarsals with normal sensation and no weakness of the toes; and a follow-up X-ray series did not identify any acute or healing fractures.  A physical therapy note dated 26 April 2007 indicated the CI was treated with orthotics (foot supports) and had a normal appearing right foot with tenderness and a positive metatarsal load test (predisposes the bone to fracture) overlying the 2nd to 4th digits (toes) and metatarsals.  At a follow-up visit the CI reported a pain level 4-5/10.  No antalgic gait was observed.

At the MEB examination dated 7 June 2007, the CI reported stress fractures and numbness in the right foot.  A permanent L3 physical profile dated 11 June 2007 was issued for the “Healed R foot stress fracture.”  He “had stress changes of the R foot 3rd & 4th Metatarsals noted on 7 March 2007.  By 28 March 2007, his right foot was normal.  He no longer has any foot pain.”  The commander’s statement dated 13 June 2007 indicated the CI was physically incapable of performing his duties as an 11B infantry due to resolved stress fractures of right foot.  The MEB physical examination dated 19 June 2007 noted the history of a stress fracture of the right foot with tenderness on palpation and pain with motion.  “Feet showed a normal appearance healed stress fractures of the 3rd and 4th metatarsal.  Foot motion was normal.”  The MEB narrative summary (NARSUM) dated 27 June 2007 noted the CI’s report of constant pain as 4-5/10 that was exacerbated by walking and minimal relief with rest, orthotic inserts and the pain medication, Tramadol.  The CI’s history of injury while ruck-marching and the development of excruciating pain in the right foot ten days later while running was confirmed, while the X-rays were interpreted as stress changes in the 3rd and 4th metatarsals.  Treatment with a physical profile, crutches, and progression to a boot for 3 weeks did not ameliorate the pain.  The examiner noted the CI walked with a cane, had tenderness over distal (closer to the toes) 2nd to 4th metatarsals with normal motor and sensory findings.  The pain was considered to be of minimal intensity and constant frequency.  The examiner indicated the CI needed a period of rest and an outpatient program of progressive muscle strengthening and conditioning.  At the VA Compensation and Pension (C&P) examination dated 30 July 2007, performed approximately a month prior to separation, the examiner reported the right foot was tender with no painful motion, edema, disturbed circulation, weakness or atrophy of the musculature.  There was active motion in the metatarsophalangeal joint of the right great toe.  The gait was abnormal and remarkable for a slight limp, favoring the right foot.  VA right foot X-rays showed healed fractures of the 3rd and 4th metatarsals.  Morton’s metatarsalgia (a benign nerve tumor (neuroma)) was not present; and, the CI did not have any limitation with standing and walking or require any type of support with his shoes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5022 (periostitis) for the stress changes of the right foot while the VA assigned a 10% rating using code 5022-5284 (foot injuries).  Using an analogous code 5022-5279 (Metatarsalgia-foot pain; usually, but not exclusively, of the first toe or involving a neuroma) also warrants a 10% rating and reflects both the X-ray changes and persistent clinical findings; however, Morton’s metatarsalgia was not present.  The Board discussed the two coding options; and, the code 5022-5284 was favored since it provides a possible higher rating option.  However, since the stress changes resolved with time, the rating does not rise to 20% for a moderately severe foot injury.  Therefore, the Board was unable to find a route to a rating greater than 10% for a moderate foot injury.  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 right foot condition.

Chronic Lumbar Condition.  The CI’s enlistment examination dated 10 January 2007 did not record any back problem, and his occupation was listed as a customer service representative.  However, a note dated 5 March 2007 indicated the CI did factory work for a year prior to military service.  A physical therapy note dated 26 April 2007 chronicled the CI’s recently developed low back pain (LBP) and history of right foot pain (discussed above).  On 9 May 2007 an examination revealed tenderness to palpation of the bilateral paraspinous (around the spine) muscles without palpation of trigger points or spasm in the L4-L5 area.  An X-ray series dated 9 May 2007 indicated a 3-week history of LBP worse on the right side than the left and demonstrated degenerative changes with multiple large Schmorl’s nodes.  Examination on 23 May 2007 noted forward flexion of the lumbosacral spine motion was abnormal and was limited by pain; and, the CI was unable to touch his toes when standing, but could bend completely forward when seated.  He had full extension and lateral side bending ranges-of-motion (ROMs).  No spasm was present and straight leg raising was negative.  At the MEB examination dated 7 June 2007, the CI reported back pain.  The MEB physical exam noted a past history of lumbar spondylosis (defect or stress fracture of a vertebra [bone of the spine]) with decreased anterior (forward) flexion.  A permanent L3 profile was issued on 11 June 2007 for degenerative disease of the lower back, which the CI indicated prevented him from training.  The commander’s statement dated 13 June 2007 indicated the CI was physically incapable of performing his duties as an infantryman in a combat environment due to degenerative joint disease of lower back.

The MEB NARSUM dated 27 June 2007 noted the CI developed back pain and was treated by physical therapy, but exercises made the pain worse.  X-rays revealed degenerative changes at multiple levels of thoracic and lumbar spine with multiple Schmorl’s nodes.  LBP was reported as 7-8/10 severity, which was constant and was exacerbated by bending, prolonged sitting and standing with minimal relief with rest and the pain medication, Tramadol.  The LBP was considered to be of moderate intensity and constant frequency.  Physical examination revealed the CI walked with a cane, had poor posture while seated, and had positive tenderness directly over the thoracolumbar junction and at L1-L4.  There was no significant paraspinal spasm or costovertebral angle tenderness (overlying the kidneys); and, there was limited forward and lateral flexion.  The examiner suggested the CI may benefit from spinal manipulation, and noted pain associated Schmorl’s nodes in adolescents is usually significant enough to prohibit level of physical activity required in military or competitive sports.
At the VA C&P examination dated 9 August 2007, performed approximately a month prior to separation, the CI reported lower back pain since April 2007 marked by stiffness and “hard to move in the mornings” with pain 7-8/10 down to the right thigh to the knee relieved by medication.  The CI’s gait was abnormal with a slight limp favoring the right foot, and he used a cane.  There was no evidence of radiating pain on movement.  Muscle spasm was absent and there was no tenderness over the spine.  The record included additional evidence within a year of separation.  Two months after separation, the CI had imaging on 22 October 2007 that demonstrated mild degenerative changes at L4-5, and a magnetic resonance imaging that revealed broad based disc bulges at T12-L1 and L4-L5, which caused mild stenosis of the nerve outflow tracts.  A note dated 27 March 2008 indicated the CI worked at an inbound call center, while a note dated 6 May 2008 indicated he worked as a server carrying trays and drinks usually less than 25 pounds, but he did clean tables and mop [the floor].  A neurosurgery consultant evaluated the CI on 5 June 2008, less than 10 months after separation, who indicated the CI had progressively worsening back pain that radiated into the right leg associated with occasional right foot numbness, but without bowel or bladder incontinence, but for one episode of difficulty voiding.  Multiple medications did not help alleviate his pain except for a narcotic, Percocet.  On examination the CI refused to perform the thoracolumbar ROMs as it caused him too much discomfort.  He did have pain in the lower lumbar paraspinal musculature on palpation, but no pain of the sacroiliac joints or the greater trochanters of the thigh bones (around the hips).  The remainder of the neurological examination was normal except a 4+/5 strength of the right plantar and dorsiflexion motions.  Surgery was recommended as was a pain specialist and cortisone injections.  On 6 June 2008, electro-diagnostic studies were normal for evaluation of a right leg radiculopathy; and a note dated 6 June 2008 indicated a history of a 2006 head-on motor vehicle accident with no obvious injuries, but for a strained neck.  Pain radiated into the right leg, which “started in the military” (“carried 80 lbs sack”).  A neurosurgery note dated 21 July 2008 indicated the CI was status post an L4-L5 anterior discectomy with an artificial disc replacement and was doing well.  Post-op pain persisted and shifted from his right to the left side.  Pain management modified medication to include gabapentin and Percocet.  At an examination on 10 September 2008, 13 months after separation, the CI was able to walk with an antalgic gait using a single point cane.  He had a limited ROM of lumbar flexion and extension, which were limited by pain with full lateral rotation and side bending.  There were no muscle spasms.  Neurologic examination was unremarkable.  Plain films done on 21 August 2008 showed metal spacers between the bodies of L4 and L5.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT (for MEB) 1.4 Mo. Pre-Sep
	VA C&P 0.6 Mo. Pre-Sep
	
Flexion (90 Normal)	20	70	
Extension (30)	5	30	
R Lat Flexion (30)	25	30	
L Lat Flexion (30)	25	30	
R Rotation (30)	20	30	
L Rotation (30)	20	30	
Combined (240)	115	220	
Comment	Limitation of motion due to pain; inclinometer used for measurements from T1 to L5, guarding present, CI used a cane, no abnormal spine contour.	Joint function limited after repetitive use by pain; spine curvatiure normal; antalgic gait.	
§4.71a Rating	40%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The IPEB using code 5299-5242 indicated there was “compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by such service.”  It reported that “[t]he degenerative changes and Schmorl’s nodes (developmental condition) did not occur in the one month the CI was on active duty prior to injuring his foot.  His back pain developed while he was recovering from that.  This is natural progression with Schmorl’s nodes.”  The VA used code 5299-5242 for LBP for “chronic lumbar degenerative changes with Schmorl’s nodes and osteophyte on L4 vertebral body,” but found the condition was not service-connected.  While those views may have had credence at the time of separation, additional after separation evidence challenges the natural history of the LBP as the process worsened and required the CI to undergo disc replacement within a year after separation in the absence of any recorded after separation trauma or injury in the record.  Therefore, the Board discussed whether the EPTS position taken by the PEB should continue with the knowledge that the lower back pain progressed at a rate greater than the natural history would suggest, especially since the VA examiner recorded pain down to the right knee prior to separation.  The member’s unfitting condition also raises the question of whether there was military aggravation.  The PEB indicated there was no service aggravation; however, the CI had an antecedent foot injury, which can alter the gait and posture as well as place a degree of strain on the back.  The issue of whether the PEB used the appropriate standard to overcome the presumption of aggravation was raised.  The Board discussed, deliberated, and determined there was military aggravation during basic training.  Therefore, the CI is eligible for a rating.  There was a significant ROM disparity between the PT examination, performed using an inclinometer and having measured the ROM from T1 to L5 several weeks earlier compared to the VA C&P examination.  Consequently, the C&P examination performed using a goniometer for the measurement of the lumbosacral ROM has more probative value especially in the absence of further objective measurements in the after separation period.  While forward flexion of 70 degrees warrants a 10% rating, the CI also had an antalgic gait and joint function additionally limited after repetitive use by pain.  As a result the Board considered a 20% rating using code 5299-5242 at the time of separation.  A DeLuca discussion was carried out to address the limitation of motion after repetitive use by pain, but the Board members consensus was that the 70 degrees flexion encompassed that consideration.  Therefore, the Board was unable to find an additional route to a higher 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 lumbar condition.

Contended Condition.

Intermittent Resting Tachycardia.  The Board’s main charge is to assess the fairness of the PEB’s determination that the intermittent resting tachycardia 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 intermittent resting tachycardia condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  Other than one examination in the record prior to separation where the pulse rate was 112 bpm (beats per minute), which demonstrated tachycardia (a resting heart rate greater than 100 bpm), the remainder of examinations including the NARSUM and VA C&P recorded the pulse as 100 bpm or less and both as well as the VARD noted the heart examinations were normal and the CI was asymptomatic.  All of the aforementioned was reviewed and considered by the Board.  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  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.  In the matter of the right foot condition, the Board unanimously recommends a disability rating of 10% coded 5022-5284 IAW VASRD §4.71a.  In the matter of the chronic lumbar condition, the Board majority recommends a disability rating of 10% coded 5299-5242 IAW VASRD §4.71a.  In the matter of the contended intermittent resting tachycardia 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 CONDITIONS	VASRD CODE	RATING	
Right Foot Condition	5022-5284	10%	
Chronic Lumbar Condition	5299-5242	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140502, 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, AR20150010374 (PD201401976)

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