RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Army

CASE NUMBER: PD1100441 SEPARATION DATE: 20020425

BOARD DATE: 20110125

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92Y10, Supply Specialist), medically separated for chronic left tarsal tunnel syndrome (TTS) with impingement rated as mild incomplete paralysis. In May 2000, during physical training, the CI had left foot discomfort for which he was treated with a nonsteroidal anti-inflammatory drug (Motrin) and given a temporary profile. In December 2000, the CI was seen by podiatry, given crutches and a profile; however, because he developed some numbness in the toes of the affected foot, he was also seen by general surgery who prescribed surgical stockings. A nerve conduction velocity (NCV) performed by neurology demonstrated TTS. Despite consults with neurology and podiatry as well as steroid injections, the CI failed treatment and was unable to perform within his Military Occupational Specialty (MOS) or meet physical fitness standards. The CI was issued a permanent L3 profile and underwent a Medical Evaluation Board (MEB). The MEB forwarded chronic TTS with impingement on DA Form 3947 to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions appeared on the MEB’s submission. Other conditions included in the Disability Evaluation System (DES) packet will be discussed below. The PEB adjudicated chronic left TTS with impingement rated as mild incomplete paralysis as unfitting, rated 10%; with application of the US Army Physical Disability Agency policy guidance memorandum #12 (6 December 1999, Subject: Table of Analogous Codes). The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION: The CI stated: “When I was discharged from the service in April of 2002 for a condition known as Tarsal Tunnel Syndrome I assumed that the diagnosis was correct. I was suffering from pain [in] the lower left leg and foot. A nerve conduction study given by a civilian doctor on 12 October 2001 came up with a diagnosis of "possible left posterior tarsal tunnel syndrome. "An orthopedic surgeon gave me a about a 50% chance of a successful surgery due to the fact that a 100% diagnosis could not be given unless exploratory surgery was done. I was told that there was a good chance that surgery could complicate and possibly make things worse. The options I were given were to choose the surgery or be medically discharged from service. I opted for the discharge because I did not feel surgery was the best option due to the lack of a 100% diagnosis of my condition. After discharge I took some time off from work to see if the symptoms I was feeling would decrease with minimal activity, [however] they stayed the same. I returned to work only to have the symptoms increase in severity and travel further and further up my leg until it reached my left hip. The pain became unbearable and I had quit work and seek medical attention from the VA hospital in Tucson, AZ. After seeking medical attention it was discovered that I had disc ruptures and degenerative disc disease [DDD], with ruptures at L5-S1, L4-L5, and a foraminal occlusion bite disc at L5-S1. After having surgery on 17 September 2004 all of the symptoms I had in my lower leg have gone away except for a slight numbness in my toes on the left foot. I feel that if a proper diagnosis of my back would have been made while I was still in the Army I would have been able to finish my career. I now suffer from extreme back pain which has caused me to suffer from major depression and in turn has had a huge impact on my social and professional life, and has affected my relationships with family. I have been on depression medicine for at least four years now and want more than anything to not have to take them anymore.”

RATING COMPARISON:

*Effective 20020426 to 20050124 when diagnosis was changed to DDD. **Effective 20050124. ***Increased to 20% effective 20050124 when diagnosis changed to DDD.

ANALYSIS SUMMARY: The Board acknowledges the CI’s opinion that a Service medical error was responsible for his disability, with the implication that the Service disability rating should provide for remedy. It must be noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to allegations regarding suspected Service improprieties or faulty medical care. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB disability ratings and fitness determinations as elaborated above. Redress in excess of the Board’s scope of recommendations must be addressed by the Army Board for Correction of Military Records (ABCMR) and/or the United States judiciary system. The Board also acknowledges the CI's contention suggesting that service ratings should have been conferred for other conditions not diagnosed while in the service (but later determined to be service-connected by the VA). While the DES considers all of the Service member's medical conditions, compensation can only be offered for those medical conditions that cut short a Service member’s career, and then only to the degree of severity present at the time of final disposition. The Department of Veterans; Affairs (DVA), however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Chronic Left TTS with Impingement Rated as Mild Incomplete Paralysis: There were two goniometric range of motion (ROM) evaluations and two non goniometric evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation.

The CI had a history of left ankle problems that were well documented in the service treatment record (STR) starting in July 1999 with a mild left ankle sprain. In 2000, the CI continued to have chronic ankle pain; however an x-ray was negative and he was issued an Ace bandage for support, a nonsteroidal anti-inflammatory medication (Motrin), and walking restriction for two weeks. In August 2000, the CI was seen for a possible stress fracture and had a bone scan which revealed an abnormal uptake in the distal left tibia and fibula and he was referred to podiatry. The podiatrist noted worsening of the ankle condition and diagnosed “paradoxical TTS” with a recommendation of physical therapy for an intense stretching program and arch support orthotics. The CI was seen by internal medicine and found to have a stress fracture and was referred to orthopedics. In January 2001, the CI was evaluated by orthopedics and diagnosed with bilateral venous stasis varicose veins, most likely causing mild compressive TTS and recommended pressure gradient Jobst stockings. The CI had several podiatry appointments and had two steroid injections for the pain. The CI underwent an EMG/NCV in October 2001 which demonstrated possible TTS without a peripheral neuropathy. In October, a neurological exam noted that the CI had numbness and tingling on the outer aspect of his left foot; chronic pain worsening on walking or jogging; slightly antalgic gait due to pain; decreased sensation on the left sole of the left foot; and a positive Tinel’s sign on the left tarsal tunnel. The MEB examination five months prior to separation indicated continuous slight pain; numbness in toes when walking; treatment failure of steroid injections, orthotics, Jobst stockings and crutches; and pain with walking on heels and toes. The commander’s statement indicated that the CI had had the functional limitation of no running and no marching with walking at own pace and distance to tolerance. The commander further opined that the CI was “an outstanding soldier who succeeds at any task given to him;” however, the limitations of his profile rendered him incapable of performing the basic task of being a soldier. The VA Compensation & Pension (C&P) examination for peripheral nerves five months after separation noted that the pain and numbness of the toes and around the left medial malleolus persisted and there was a decrease in sensation around the left heel and left medial malleolus. However, the gait, tandem gait and walking on heels and toes was all normal. The neurologist further opined that the CI likely had TTS. The general VA C&P examination eight days later indicated normal ROM and no radiating back pain.

Approximately three and a half years after separation, the VA determined the CI’s left foot condition was, more likely than not, attributable to lumbar spine DDD with radiculopathy and not due to tarsal tunnel syndrome. This decision was based on an orthopedic examination completed 1 September 2005. The VA changed the CI’s service-connected diagnosis from left TTS to DDD lumbar spine. Effective 24 January 2005, the disability rating for TTS was discontinued and a new disability rating for DDD was started. This condition is rated based on ROM of the thoracolumbar spine. Although the CI’s ROM warranted a 10% rating, the VA increased the rating to 20% based on minor subjective neurological symptoms. It is not clear why a separate rating of 10% was not applied for the radiculopathy as is normally done, rather than increasing the rating percentage for the spinal condition. However, the total combined rating is the same.

There is no evidence of the presence of back pain or DDD prior to separation. The narrative summary examination does not mention any history of a current or previous back complaint and no back exam is documented. On the MEB history and physical, the CI marked no to recurrent back pain or any back problem and the examiner noted a normal spine exam. The original VA C&P general and neurologic examinations of September 2002 document normal motor and reflex examinations and the general exam documents a normal back examination, specifically stating there was no back pain that radiated anywhere. The only abnormalities noted were pain and decreased sensation in the left foot.

The CI was found to be unfit for the pain and decreased sensation in his left foot which interfered with his ability to perform his required duties. Whether this condition was due to DDD in his lumbar spine or tarsal tunnel syndrome does not affect the rating at the time of separation. If DDD was present at the time of separation, the CI had a normal back exam with no painful motion and no decreased ROM and it would have been rated at 0%. The CI’s left foot pain and decreased sensation condition is appropriately rated as analogous to 8725 posterior tibial nerve neuralgia. As no motor or strength abnormalities were noted and reflexes were normal, the involvement is considered to wholly sensory and IAW with VASRD §4.124a the rating should be for the mild, or at most, the moderate degree of incomplete paralysis. Both mild and moderate degrees are rated at 10%.

The PEB coded the chronic left TTS with impingement rated as mild incomplete paralysis as 5299 analogous to 8725 (neuralgia-posterior tibia nerve) rated mild at 10% and the VA coded 8799 analogous to 8725 rated at 10%. Both examinations noted chronic pain and numbness of toes; however, the VA examination showed a slightly improved ROM without loss of motion. The Board must decide which exam has the higher probative value as both the MEB exam and the VA exam are equidistant from the date of separation. After due deliberation, considering all of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic left TTS with impingement rated as mild incomplete paralysis condition.

Other Contended Conditions. The CI’s application asserts that compensable ratings should be considered for “disc ruptures and DDD, with ruptures at L5-S1, L4-L5, and a foraminal occlusion disc at L5-S1” and “major depression.” Neither of these conditions were mentioned in the DES file and therefore neither can be considered by the Board. Although DDD was service-connected and rated by the VA, this condition was not documented in the DES file. Major depression was not documented in the DES file and the VA determined that depression/anxiety was not service-connected. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

Remaining Conditions. Other conditions identified in the DES file were hypercholesteremia, chest pain, injured fingers and gastrointestinal problems. Several additional non-acute conditions or medical complaints were also documented. None of these conditions were significantly clinically or occupationally active during the MEB period, none carried attached profiles, and none were implicated in the commander’s statement. These conditions were reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating.

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 chronic left TTS with impingement rated as mild incomplete paralysis condition IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication at separation. In the matter of the hypercholesteremia, chest pain, injured fingers and gastrointestinal conditions or any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110523, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for (PD201100441)

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 and hereby deny the individual’s application.

This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl

CF:

( ) DoD PDBR

( ) DVA