RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
SEPARATION DATE: 20060907
NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200410
BOARD DATE: 20121218
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SPC/E‐4 (74D/Chemical Operations Specialist),
medically separated for low back pain (LBP), bilateral leg pain and bilateral pes planus. The CI
first noted the onset of bilateral leg pain while in basic training in February 2004. He also had
LBP develop after doing sit ups in August 2005. Pes planus was noted on his accession
examination. The LBP, bilateral leg pain and pes planus conditions did not improve adequately
with treatment to meet the physical requirements of his Military Occupational Specialty (MOS)
or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a
Medical Evaluation Board (MEB). These conditions were determined to fail retention standards
and forwarded to the Physical Evaluation Board (PEB) for adjudication. Obstructive sleep apnea
(OSA) was also forwarded by the MEB as medically acceptable. The PEB adjudicated the LBP
and bilateral leg pain conditions as unfitting, rated 10% each with application of the US Army
Physical Disability Agency (USAPDA) pain policy. The bilateral pes planus condition was
determined to have existed prior to service (EPTS) and was not permanently aggravated beyond
natural progression. The OSA condition was determined to be not unfitting and therefore not
ratable. The CI made no appeals and was medically separated with a 20% disability rating.
CI CONTENTION: “A. PEB CODE 7295/VA CODE 5099‐ 5022:BILATERAL LEG PAIN (SHIN SPLINTS)
WAS RATED AT A COMBINED RATING OF 10% (L/R). BUT THE VA GAVE A 10% RATING OF LEFT
LEG AND A 10% RATING OF RIGHT LEG. B. PEB CODE 327.23/ VA CODE: OBSTRUCTIVE SLEEP
APNEA. THE ARMY FAILED TO RATE MY IMPAIRMENT DURING MY MEB IPEB PROCESS. BUT THE
VA ON HAND GRANTED 50%. THIS CONDITIONS IS DIRECTLY REALTED TO MILITARY SERVICE. C.
BILATERAL PLANTAR FASCIITIS , CONDITION WHICH WAS SUPPOSED TO BE ON MY PEB
PAPERWORK WAS ACTUALLY LINKED MISTAKENLY TO MY PES PLANUS. THIS CONDITION
CAUSES PAIN IN THE BOTTOM OF MY FOOT (L/R) WHICH HURTS WHEN STANDING AND
WALKING ESPECIALLY DURING THE MORNING TIME. D. PEB CODE 724.2/ VA CODE 5299‐5276:
BILATERAL PES PLANUS. THIS CONDITION WAS AGGRAVATED FROM MILD (ENTRY) TO SEVERE
(ETS).” Note: ETS is expiration, term of service.
SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI
6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined
by the PEB to be specifically unfitting for continued military service; or, when requested by the
CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings
for unfitting conditions will be reviewed in all cases. The OSA condition meets the criteria
prescribed in DoDI 6040.44 for Board purview and is addressed below in addition to a review of
the ratings for the three unfitting conditions. The other requested condition of bilateral plantar
fasciitis was not within the Board’s purview. Any conditions or contention not requested in this
application, or otherwise outside the Board’s defined scope of review, remain eligible for future
consideration by the Army Board for Correction of Military Records.
RATING COMPARISON:
Service IPEB – Dated 20060711
Condition
Code
Low Back Pain
Bilateral Leg Pain
Bilateral Pes Planus
Obstructive Sleep Apnea
Rating
10%
10%
EPTS
5299‐5237
5099‐5022
5299‐5276
Not Unfitting
↓No Addi(cid:415)onal MEB/PEB Entries↓
VA (3 Mos. Pre ‐Separation) – All Effective Date 20060908
Condition
Chronic Lumbar Strain
Chronic Shin Splints LLE
Chronic Shin Splints RLE
Pes Planus
Obstructive Sleep Apnea
Chronic Cervical Strain
Plantar Fasciitis
Tinnitus
Pseudofolliculitis Barbae
Eczema
Code
5237
5299‐5262
5262
5276
6847
5237
6260
7800
7806
5299‐5276
Rating
10%
10%
10%
NSC
50%
10%
10%
10%
10%
10%
Exam
20060626
20060626
20060626
20060626
20060626
20060626
20060626
20060605
20060626
20060626
Combined: 20%
0% X 1 / Not Service‐Connected x 2
Combined: 80%
ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit
and vital fighting force. While the DES considers all of the member's medical conditions,
compensation can only be offered for those medical conditions that cut short a member’s
career, and then only to the degree of severity present at the time of final disposition. The
Board notes that the mere presence of a diagnosis does not render the condition unfitting. The
DES has neither the role nor the authority to compensate members for anticipated future
severity or potential complications of conditions resulting in medical separation nor for
conditions determined to be service‐connected by the Department of Veterans Affairs (DVA)
but not determined to be unfitting by the PEB. However the DVA, operating under a different
set of laws (Title 38, United States Code), is empowered to compensate all 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. The Board’s role is
confined to the review of medical records and all evidence at hand to assess the fairness of PEB
rating determinations, compared to VASRD standards, based on severity at the time of
separation. The Board utilizes DVA evidence proximal to separation in arriving at its
recommendations; and, DoDI 6040.44 defines a 12‐month interval for special consideration to
post‐separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides
in evaluating the fairness of DES fitness determinations and rating decisions for disability at the
time of separation. Post‐separation evidence therefore is probative only to the extent that it
reasonably reflects the disability and fitness implications at the time of separation. The Board
has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s
statements in the application regarding suspected DES improprieties in the processing of his
case.
Low Back Condition. There were two goniometric range‐of‐motion (ROM) 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.
PT/MEB ~5 Mo. Pre‐Sep
VA C&P ~3 Mo. Post‐Sep
Thoracolumbar ROM
Degrees
Flexion (90 Normal)
Combined (240)
§4.71a Rating
90
235
10%
Comment
+ Constant Pain
+ After rep use limited by
fatigue, lack of endurance &
80
230
pain
10%
The CI first presented with LBP in August 2005, over a year prior to separation, noting a one day
history of pain since doing sit ups. He was being seen for multiple other complaints on that
2 PD12‐00410
visit, but it was noted that there was no trauma and that the ROM and gait were normal. Over
the next 6 months, he was treated conservatively with medications, duty limitations and
physical therapy (PT) without adequate improvement and referred to a MEB on 27 January
2006. Plain X‐rays that day were normal. A bone scan on 29 March 2006 showed no activity in
the back which would indicate ongoing inflammation. At the MEB examination on 5 April 2006,
the CI reported persistent LBP associated with heavy lifting. The MEB examiner noted a
muscular build without further comment on the back. Magnetic resonance imaging (MRI) on
18 April 2006 showed minimal disc disease at L5‐S1 and an “Essentially normal exam.” was
noted. A PT examination on 8 May 2006 noted a normal gait, strength and thoracolumbar
curvature without spasm. A follow‐up examination on 30 May 2006 noted a similar
examination, but also noted tenderness over the L4‐5 spinous and right transverse processes.
His symptoms were noted to be improving. The narrative summary (NARSUM) was dictated on
20 June 2006 and noted that the LBP was aggravated by sit‐ups. Reflexes and strength were
normal; his gait was slightly antalgic. Provocative testing (straight leg raise [SLR]) for nerve root
irritation was negative. Lower lumbar tenderness to palpation was noted, but no paraspinal
tenderness. The ROM is above. An orthopedic addendum, on 7 July 2006, noted that the CI
had very mild paraspinal tenderness, but was without midline tenderness. At the VA
Compensation and Pension (C&P) exam on 26 June 2006, 2 months prior to separation, the CI
reported constant pain and weakness, but denied incapacitation. He was treated with rest and
a narcotic medication for the pain. On examination, he was noted to have lumbar tenderness
and spasm. A SLR was negative bilaterally. Curvature and gait were normal. X‐rays were
normal. With repetition, the CI noted pain, fatigue and lack of endurance, but without further
limitation in ROM. There were no signs of intervertebral disc syndrome or nerve root
involvement.
The Board directs attention to its rating recommendation based on the above evidence. The
PEB and VA both rated the back at 10% and coded it 5237 for lumbosacral strain, although the
PEB did so analogously. The Board noted that the limitation in ROM rates at 10%. It considered
that the rating and coding assigned by both the PEB and VA were appropriate and saw no route
to a higher rating. After due deliberation, considering all of the evidence and mindful of VASRD
§4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend
a change in the PEB adjudication for the back condition.
Bilateral Leg Pain Condition. The CI was first seen for bilateral shin splints on 15 September
2004 when he noted a 5 month history of pain. At a subsequent internal medicine visit
performed on 19 October 2004, the CI noted that they had been present since February 2004,
the time of accession and basic training, and were aggravated by running over 2.5 miles. He
was treated with medications and duty modification. A bone scan on 16 December 2004 was
unremarkable. His symptoms initially improved, but then recurred. He was referred to PT. A
normal gait and neurological examination were noted. At an orthopedic examination on 27 July
2005, he was thought to have a stress reaction. X‐rays of the tibia and fibula on 27 July 2005
were normal bilaterally. He continued conservative management. A podiatry evaluation on 21
October 2005 also noted bilateral plantar fasciitis. A repeat bone scan on 29 March 2006 was
positive for minimal shin splints bilaterally, but otherwise negative. The NARSUM documented
persistent pain which was aggravated by walking or running. He had been on leave for 30 days
with improvement in his symptoms. On examination, his gait was slightly antalgic. He was
tender to palpation over the anterior tibias, but without redness, warmth or swelling. At the
C&P examination, the CI reported a 2 year history of bilateral shin splints aggravated by activity
and limiting him to no more than 20 minutes of standing and the inability to run or jump. On
examination, gait and posture were normal. The mid‐tibias were tender to palpation. X‐rays
were normal. An orthopedic addendum on 7 July 2006, 2 months prior to separation, noted
that there was “no tenderness to palpation over either tibia, the subcutaneous portion of the
tibia or of the anterolateral compartments or of the area of the leg for that matter.” The
impression was bilateral leg pain unrelieved by non‐operative management. The Board directs
3 PD12‐00410
attention to its rating recommendation based on the above evidence. The PEB rated the
bilateral leg pain at 10% and coded it analogously to 5022, periostitis. The VA rated each leg at
10% and utilized the coding option of 5262, impairment of the tibia and fibula. The Board
noted that ‘shin splints’ is the common name for tibial periostitis. The Board considered these
two coding options and also the other options available for the lower extremity and
determined that the PEB coding of 5022 best fit the clinical findings. Under 5099‐5022, the
rating criteria for two or more major joints without incapacitating episodes meet the 10%
disability rating level. However, the Board also noted that the orthopedic addendum,
accomplished 2 months prior to separation and after the VA examination, annotated an
absence of any tenderness over the tibias or lower leg. This would support a conclusion that
the condition had resolved and that either no rating should be assigned or that a non‐
compensable rating awarded, at most. However, the Board cannot assign a rating lower than
that awarded by the PEB. After due deliberation, considering all of the evidence and mindful of
VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to
recommend a change in the PEB adjudication for the bilateral leg pain condition.
Bilateral Pes Planus Condition. The CI was noted to have mild, asymptomatic pes planus on his
entrance examination 31 October 2003, a little over 2 months prior to accession. At the
16 March 2005 evaluation for his shin splints, orthotics were prescribed. On 21 October 2005,
at another appointment for the bilateral leg pain, he was noted by the podiatrist to have
bilateral plantar fasciitis. A 19 April 2006 primary care note documented flat feet (pes planus),
but also noted that there was no tenderness of the feet. The orthotics were adjusted and his
profile modified to allow soft shoes or shoes of choice for the bilateral pain in his feet. Neither
bone scan showed activity in the feet indicative of an ongoing inflammatory process. At the
MEB examination, bilateral severe, symptomatic pes planus was noted. The NARSUM
documented that the CI was able to wear his boots, but that his feet hurt and that the pain
progressed over the course of the day. On examination, he was noted to have normal ROM and
that there was no tenderness. At the C&P examination, the CI reported persistent pain
aggravated by activity. He was limited in standing to 20 minutes and could not run or jump.
Gait was normal and there was no evidence of abnormal weight bearing on his shoes. Both feet
were tender to palpation and showed pes planus. X‐rays, including weight bearing, were
normal. The orthopedic addendum did not specifically address the feet. The Board directs
attention to its rating recommendation based on the above evidence. The PEB determined that
the pes planus condition was unfitting, but that it was an EPTS condition which had not been
permanently aggravated beyond normal progression. The VA determined that the condition
was not service‐connected using the same reasoning. The Board considered the fact that this
was noted on the accession examination and that the CI complained of lower extremity pain
very early in his enlistment. There was no history of trauma other than from the increased
activity attendant to a military lifestyle. The Board observed that it is not unusual for
individuals with preexisting, but asymptomatic conditions to become symptomatic once they
undergo the rigors of military duties. The Board also noted that the CI contended for bilateral
plantar fasciitis. As already noted, this is outside of the purview of the Board. Nonetheless, the
Board observed that the final profile did not include plantar fasciitis and that the NARSUM
examiner noted no tenderness in the feet. It also noted that neither bone scan showed uptake
in the feet. While associated with pes planus, it is a separate medical condition. After due
deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the
Board concluded that there was insufficient cause to recommend a change in the PEB
adjudication for the bilateral pes planus condition.
Contended PEB Conditions. The contended condition adjudicated as not unfitting by the PEB
was OSA. The Board’s first charge with respect to this condition is an assessment of the
appropriateness of the PEB’s fitness adjudications. 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.
4 PD12‐00410
The CI was diagnosed with OSA while in the MEB process. In this case, the CI was referred for a
sleep study on 23 March 2006, 2 months into the MEB process. He was found to have mild OSA
and treated with continuous positive airway pressure. This was noted on his final profile, but
no limitations were placed and he remained P1. The MEB determined this to be medically
acceptable. The commander did not specifically comment on this condition. The PEB
determined that it did not significantly interfere with duty performance. There was no
indication 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 OSA condition. Therefore, no additional disability rating can be
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. 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 back, bilateral leg pain and pes planus conditions and IAW
VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the
matter of the contended OSA 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, therefore, recommends that there be no recharacterization of
the CI’s disability and separation determination, as follows:
UNFITTING CONDITION
VASRD CODE RATING
5299‐5237
5099‐5022
5299‐5276
COMBINED
10%
10%
‐‐‐
20%
MEMORANDUM FOR Commander, US Army Physical Disability Agency
5 PD12‐00410
Low Back Pain
Bilateral Leg Pain
Bilateral Pes Planus
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120411, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
(TAPD‐ZB / XXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for
XXXXXXXXXXXXXX, AR20130000007 (PD201200410)
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
XXXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
6 PD12‐00410
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