ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-1998-02476
XXXXXXX COUNSEL: JAMES E. KEOUGH
XXXXXXX HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
In an application, dated 30 August 1998, he requested permanent retirement
by reason of physical disability, effective 6 July 1998, with retroactive
pay and allowances. However, in his response to the advisory opinion, the
applicant’s counsel requested a disability rating greater than 40% be
awarded.
_________________________________________________________________
STATEMENT OF FACTS:
On 12 October 1999, the Board considered applicant’s request that he be
retired by reason of physical disability, effective 6 July 1998, with
retroactive pay and allowances. Prior to rendering a final decision of his
request, the Board recommended he undergo evaluation and review through the
Air Force Disability Evaluation System (DES) to determine his current
medical condition and that the results be forwarded to the Board so that
all necessary and appropriate actions may be completed. For an accounting
of the facts and circumstances surrounding the application, and the
rationale of the earlier decision by the Board, see the Record of
Proceedings at Exhibit L.
The applicant was evaluated through the DES, with the Secretary of the Air
Force Personnel Council ultimately concurring with the recommendations of
the Formal and Informal Physical Evaluation Boards that he be awarded a
disability rating of 20%, based on his left heel injury, and he be
discharged with severance pay (Exhibit M).
On 3 April 2001, the applicant’s case was administratively closed in
accordance with his counsel’s request. Counsel requested the case be
reopened on 30 September 2002, and provided additional documentation
(Exhibit Q).
On 30 April 2003, counsel provided additional documentation regarding the
applicant’s Department of Veterans Affairs (DVA) records (Exhibit R).
_________________________________________________________________
AIR FORCE EVALUATION:
The BCMR Medical Consultant recommends permanent disability retirement
based on a combined rating of 40% (20% - right foot fasciitis status post
right plantar fascial release, and 20% - left Achilles tendon injury and
residuals of surgery). The BCMR Medical Consultant states, in part, that
elective surgery should not have been performed on the applicant so close
to his separation date and resulted in sub-optimal post-operative care.
This may have contributed to his disabling pain, which was an unexpected
outcome. In view of this, rating the right foot condition at 20% is
warranted based on improper procedures for approval of elective surgery.
When applying the bilateral factor for the left Achilles tendon injury, for
which he was already rated at 20%, his records should reflect permanent
retirement based on a combined rating of 40%.
The BCMR Medical Consultant’s evaluation is at Exhibit S.
_________________________________________________________________
APPLICANT’S REVIEW OF AIR FORCE EVALUATION:
The applicant’s counsel states that although the advisory opinion proposed
no changes to the applicant’s records regarding his depression and other
psychiatric conditions, the DVA rated these conditions at 30%. As such, he
should either receive a 30% rating for these conditions, or in the
alternative, receive a new physical examination through the Disability
Evaluation System (DES). While the advisory opinion contends these
conditions are not ratable or compensable under the military disability
system, no regulation is cited to support these conclusions. Counsel notes
that six months after his discharge, the DVA identified his condition as
major depression, and the following month, diagnosed his condition as major
depressive disorder. Based on the results of an MRI completed prior to his
discharge, the applicant should have received a 10% disability rating based
on his chronic neck pain. Furthermore, his Reflex Sympathetic Dystrophy
(RSD) was not evaluated by the PEB prior to his discharge, despite the fact
that military physicians determined he is affected with chronic pain and
residuals of RSD.
Counsel’s complete response, with attachments, is at Exhibit U.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice warranting the applicant’s permanent
retirement by reason of physical disability, with a 40% rating. In this
respect, we note the applicant was processed through the Air Force
Disability Evaluation System (DES). However, after his evaluation through
the DES and prior to his discharge, he underwent a fascia cut and release
operation. In view of this, the Board directed the applicant again be
evaluated through the DES so that any new medical conditions/information
could be considered prior to the Board rendering a final decision on his
request for permanent disability retirement. This evaluation has been
completed, with the Secretary of the Air Force Personnel Council concurring
with the recommendations of the Informal and Formal Physical Evaluation
Boards that he be awarded a disability rating of 20%, based on his left
heel injury, and discharged with severance pay. The BCMR Medical
Consultant indicates that elective surgery should not have been performed
on the applicant so close to his separation date and resulted in sub-
optimal post-operative care, which may have contributed to his disabling
pain. In view of this, we agree with the recommendation of the BCMR
Medical Consultant that the applicant be permanently disability retired
based on a combined rating of 40% (20% - right foot fasciitis status post
right plantar fascial release and 20% - left Achilles tendon injury and
residuals of surgery). Therefore, we recommend the applicant’s records be
corrected to the extent indicated below.
2. Insufficient relevant evidence has been presented to demonstrate the
existence of error or injustice to warrant awarding the applicant a total
disability rating greater than 40%. Counsel contends the applicant’s other
conditions (i.e., major depressive disorder, chronic neck pain, and Reflex
Sympathetic Dystrophy (RSD)) should have been rated by the Air Force. It
appears counsel believes the Air Force erred in not rating these conditions
since the applicant has received disability ratings from the DVA for these
conditions. However, we note that although the Air Force is required to
rate disabilities in accordance with the DVA Schedule for Rating
Disabilities, the DVA operates under a totally separate system with a
different statutory basis. In this respect, we note the DVA rates for any
and all service-connected conditions, to the degree they interfere with
future employability, without consideration of fitness. Whereas, the Air
Force, upon a finding of unfitness, rates a member's disability based on
the degree of severity at the time of separation. In the applicant's case,
the Air Force considered these conditions and other than his mechanical
neck pain, which was found to be unfitting but not compensable or ratable,
determined they did not render him unfit for military service. Based on
the foregoing, and in the absence of evidence to the contrary, we find no
basis upon which to recommend awarding him a total disability rating
greater than 40%.
3. The applicant's case is adequately documented and it has not been shown
that a personal appearance with or without counsel will materially add to
our understanding of the issues involved. Therefore, the request for a
hearing is not favorably considered.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating
to APPLICANT be corrected to show that:
a. On 5 July 1998, he was found unfit to perform the duties of his
office, rank, grade or rating by reason of physical disability incurred
while entitled to receive basic pay; the diagnoses in his case were left
Achilles tendinosis secondary to spiked gaff injury, status post 12
December 1996 excision of tendinosis, VA Diagnostic Codes 5311-5399, rated
at 20%; right foot fasciitis, status post 25 June 1998 right plantar
fascial release, VA Diagnostic Codes 5310-5399, rated at 20%; the total
combined compensable rating was 40%; the disabilities are permanent; the
disabilities were not due to intentional misconduct or willful neglect, the
disabilities were not incurred during a period of unauthorized absence; the
disabilities were not incurred during a period of national emergency; and
the disabilities were not the direct result of armed conflict or caused by
an instrumentality of war.
b. On 6 July 1998, he was not discharged with entitlement to
disability severance pay, but on that date, he was released from active
duty and, on 7 July 1998, he was permanently retired by reason of physical
disability under the provisions of Title 10, USC, Section 1201, and AFI 36-
3212, with a combined compensable disability rating of 40%.
_________________________________________________________________
The following members of the Board considered Docket Number BC-1998-02476
in Executive Session on 4 February 2004, under the provisions of AFI 36-
2603:
Mr. Michael K. Gallogly, Panel Chair
Ms. Mary Johnson, Member
Ms. Rita S. Looney, Member
All members voted to correct the records, as recommended. The following
documentary evidence was considered:
Exhibit L. Record of Proceedings, dtd 17 Feb 00, w/atchs.
Exhibit M. Letter, AFPC/DPPD, dated 31 Jan 01, w/atchs.
Exhibit N. Letter, AFBCMR, dated 7 Mar 01.
Exhibit O. Letter, Counsel, dated 29 Mar 01.
Exhibit P. Letter, AFBCMR, dated 3 Apr 01.
Exhibit Q. Letter, Counsel, dated 30 Sep 02, w/atchs.
Exhibit R. Letter, Counsel, dated 30 Apr 03.
Exhibit S. Letter, BCMR Medical Consultant, dated 20 Oct 03.
Exhibit T. Letter, AFBCMR, dated 21 Oct 03.
Exhibit U. Letter, Counsel, dated 5 Nov 03.
MICHAEL K. GALLOGLY
Panel Chair
AFBCMR BC-1998-02476
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:
The pertinent military records of the Department of the Air Force
relating to XXXXXXX, XXXXXXX, be corrected to show that:
a. On 5 July 1998, he was found unfit to perform the
duties of his office, rank, grade or rating by reason of physical
disability incurred while entitled to receive basic pay; the diagnoses in
his case were left Achilles tendinosis secondary to spiked gaff injury,
status post 12 December 1996 excision of tendinosis, VA Diagnostic Codes
5311-5399, rated at 20%; right foot fasciitis, status post 25 June 1998
right plantar fascial release, VA Diagnostic Codes 5310-5399, rated at 20%;
the total combined compensable rating was 40%; the disabilities are
permanent; the disabilities were not due to intentional misconduct or
willful neglect, the disabilities were not incurred during a period of
unauthorized absence; the disabilities were not incurred during a period of
national emergency; and the disabilities were not the direct result of
armed conflict or caused by an instrumentality of war.
b. On 6 July 1998, he was not discharged with
entitlement to disability severance pay, but on that date, he was released
from active duty and, on 7 July 1998, he was permanently retired by reason
of physical disability under the provisions of Title 10, USC, Section 1201,
and AFI 36-3212, with a combined compensable disability rating of 40%.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
Based on the preponderance of evidence, and after a thorough review of the entire case file, the IPEB found that had these conditions been identified and presented to the board in the form of a special review prior to his discharge, they would have acknowledged their existence; however, they would not have considered them unfitting, ratable, or compensable under the provisions of military disability law and policy. A complete copy of the Air Force evaluation is attached at Exhibit...
AF | PDBR | CY2013 | PD-2013-01817
The rating for the unfitting chronic recurrent plantar fasciitis bilaterally and equinus deformity bilaterally conditions are addressed below;no additional conditions are within the DoDI 6040.44 defined purview of the Board. When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the Disability...
AF | PDBR | CY2010 | PD2010-00045
The Board considered rating the left ankle degeneration separately, but determined the rear-foot pain was best considered as degenerative changes of the left rear foot which also contributed to the limitation of ankle motion from the plantar fasciitis. The Board recommends no additional separately unfitting foot or ankle condition, or change in the PEB adjudications other than PF, and all symptoms were considered under the separate 5399-5310 coding ratings above. Exhibit C. Department of...
AF | PDBR | CY2011 | PD2011-01102
The PEB adjudicated the bilateral, plantar fasciitis and bilateral flat feet conditions as unfitting, rated 0%, with application of the U.S. Army Physical Disability Agency (USAPDA) pain policy. It noted the progression of the bilateral foot pain despite conservative treatment and limitation of activities; “currently, her feet still hurt and she is not doing any high impact activities but the pain is starting to increase.” The examination documented bilateral pes planus and tenderness on...
AF | PDBR | CY2013 | PD-2013-02553
At the VA Compensation and Pension (C&P) examination(performed 9 months after separation) the CI reported prior to surgery the pain level was 9/10 to 10/10. Pain was present 1-2 times a month and there was no pain daily with walking. Physical Disability Board of Review
AF | PDBR | CY2012 | PD2012-00031
Bilateral Foot/Ankle Condition . The MEB physical exam demonstrated; a slow gait, bilateral tenderness of the ankles, increased pain along the posterior region of the left ankle, negative medial and lateral pain of the right ankle, bilateral tenderness over the plantar fascia and also on the area of the medial heads of the calcaneus (heel bone), bilateral pes planus (flat foot), a scar on the left big toe, without erythema, edema or instability of the ankles. RECOMMENDATION : The Board,...
AF | BCMR | CY2008 | BC-2007-01005
The AFPC/DPPD evaluation is at Exhibit C. The BCMR Medical Consultant is of the opinion that the applicant’s total combined permanent disability percentage should be increased from 40 to 60 percent to reflect the severe nature of his bilateral foot pain, which prevented him from reasonably performing his military duties. In the applicant’s case, the Air Force limited its unfit finding to his bilateral foot condition since that was the only condition limiting the performance of his military...
AF | PDBR | CY2011 | PD2011-00636
Bilateral Foot Condition . Secondly, the congenital pes planus condition itself was not service-aggravated; rather, the painful complications of plantar fasciitis and/or tendinitis were the service-acquired and unfitting conditions (e.g., subject to disability rating). In the matter of the bilateral plantar fasciitis condition, the Board unanimously recommends that each foot be separately adjudicated as follows: an unfitting right plantar fasciitis condition coded 5399-5310 and rated 10%;...
AF | PDBR | CY2013 | PD-2013-01977
The MEB examination cited a physical examination dated 22 February 2001 and noted continued hand swelling, near full flexion and extension of her fingers, but decreased wrist ROM with extension/flexion of 30 degrees/45 degrees (normal 70 degrees/80 degrees) with normal skin color, temperature and appearance and normal sensation.At physical therapy visitsfrom April 2001 to July 2001, after the NARSUM cited February examination wrist ROM was noted to be flexion/extension 75 degrees/65 degrees,...
AF | PDBR | CY2011 | PD2011-01075
RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW BRANCH OF SERVICE: ARMY SEPARATION DATE: 20050228 NAME: XXXXXXXXXXXXXXXXX CASE NUMBER: PD1101075 BOARD DATE: 20121002 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (42A/Personnel Administration), medically separated for chronic right foot pain secondary to plantar fasciitis. An initial Physical Evaluation Board (PEB) adjudicated the chronic...