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AF | PDBR | CY2012 | PD2012 01516
Original file (PD2012 01516.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201516   SEPARATION DATE: 20090825
BOARD DATE: 20130418


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (11B30/Infantry), medically separated for bilateral acquired flatfeet. He noted pes planus during his entry physical and had increasing foot pain with greater pain after surgery to repair a fractured left foot metatarsal, in September 2008. Despite decreased activity, orthotic use and non-steroidal anti-inflammatory drugs (NSAIDs), the CI’s bilateral foot pain did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3/H2 profile and referred for a Medical Evaluation Board (MEB). Migraine headaches, mid-thoracic musculoskeletal pain, mild obstructive sleep apnea and high frequency sensorineural hearing loss conditions, identified in the rating chart below, were also identified and forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the bilateral foot condition as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to meet retention standards. The CI made no appeals, and was medically separated with a 10% disability rating.
CI CONTENTION: CI contention is 2 pages long; however, it begins with the statement: “I am requesting that the board review my packet for all medical conditions, without regard to the PEB's determinations to fitness/unfitness for continued military 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 unfitting bilateral foot condition and all not unfitting conditions (migraine headaches, mid thoracic musculoskeletal back pain, mild sleep apnea and high frequency sensorineural hearing loss) meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. 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 the Correction of Military Records (ABCMR).


 RATING COMPARISON :

Service IPEB – Dated 20090520
 VA (2 Mos. Post-Separation) – All Effective Date 20090826
Condition
 Code Rating Condition Code Rating Exam
Flatfeet; acquired 5276 10% Bilateral Pes Planus 5276 10% 20091029
Migraine Headaches Not Unfitting Migraine Headaches 8100 30% 20091029
Mild Thoracic Musculoskeletal Not Unfitting T-Spine Mild Degenerative Changes 5242 10% 20091029
Mild Obstructive Sleep Apnea Not Unfitting Mild Obstructive Sleep Apnea 6847 50% 20091029
High Frequency Hearing Loss Not Unfitting Hearing Loss Right Ear 6100 0% 20091030
↓No Additional MEB/PEB Entries↓
 Scar Left Foot 7804 10% 20091029
Left 5th Metatarsal Fracture, S/P Repair 5283 10% 20091029
0%x3 20091029
Combined: 10%
 Combined: 80%
ANALYSIS SUMMARY : The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that the Disability Evaluation System has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Veterans Administration. T he Board also acknowledges the CI’s assertion that his degenerative arthritic back condition is related to his unfitting bilateral pes planus condition and therefore should be subject to additional disability rating . T he Board must note that a causality linkage of these contended conditions with the unfitting primary condition, even if conceded, is not a basis in itself for separation disability rating. A concomitant condition of this nature must itself be independently unfitting to merit additional rating.

Bilateral Foot Condition. The CI’s pes planus condition was documented as asymptomatic on his military entrance exam, in 1991. It worsened while on active duty and especially after surgical repair of a left foot fracture. He continued to experience stiffness both feet, "tight muscles," popping with pain primarily just in the left foot and lateral ankle area. He denied weakness and swelling with flare-ups, pain 3/10 lasting 1 hour, every 2-3 weeks. He had exhausted all conservative methods of treatment and surgical treatment was not considered for his condition. The narrative summary prepared 7 months prior to separation noted painful feet as above. Physical exam revealed no pain upon range-of-motion. Plain film x-ray demonstrated decreased calcaneal inclination angle indicative of pes planus. The VA Compensation and Pension (C&P) exam performed 2 months after separation confirmed the above history. Physical exam revealed a normal gait. Both feet demonstrated evidence of flatfoot with weight bearing line over or medial to the great toe. Both feet had no arch on weight bearing, minimal arch on non-weight bearing and no pronation or mal-alignment. The right foot was non-tender. The left foot demonstrated painful motion, tenderness with a healed surgical scar over the 5th metatarsal. No callouses were documented. Plain film x-rays of the left foot revealed a healed fracture base of fifth metatarsal, no arthritic changes of any foot joint and marked flattening of the tarsal arch.

The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and the VA applied VASRD code 5276, acquired flatfoot (pes planus), and each rated it 10% disabling. Rating this condition under the appropriate VASRD 5276 code is unequivocal. The CI had bilateral pes planus and §5276 code contains rating levels that take involvement of both feet into account, eliminating the bilateral factor requirement. The CI’s symptoms were more than the zero percent, mild, level as his foot pain failed to respond to shoe inserts. The 10% or “moderate” rating level requires “weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet” and applies to either bilateral or unilateral pes planus conditions. The C&P exam adequately documents findings consistent with the 10% rating criteria. The next higher “severe’ rating level requires “objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities” which were not present in this case. 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 flat feet condition.
Contended PEB Condition. The contended conditions adjudicated as not unfitting by the PEB were migraine headaches, mid thoracic musculoskeletal back pain, mild sleep apnea and high frequency sensorineural hearing loss. The Board’s first charge with respect to these conditions 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. The CI’s migraine headaches were not incapacitating, promptly responded to standard treatment and had not resulted in a significant loss of duty time. The headaches were not implicated in the commander’s statement and were never profiled. The mid-thoracic musculoskeletal condition, as well as any other back condition, was never profiled or implicated in the commander’s statement as duty limiting conditions. There was no indication from the record that the mid thoracic musculoskeletal condition significantly interfered with satisfactory duty performance. The CI’s sleep apnea was evaluated with a sleep study and determined to be “mild.” The service treatment records do not document any negative impact to duty performance due to sleep apnea. The mild sleep apnea was not implicated in the commander’s statement and was never profiled. The mild high frequency sensorineural hearing loss resulted in a P2 profile but resulted in no duty restrictions. It was not implicated in the commander’s statement. None of the contended conditions were judged to fail retention standards after review by the action officer and consideration by the Board. After due deliberation in consideration of the preponderance of the evidence, members agreed that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions; and, therefore, no additional disability ratings 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 bilateral flat feet condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended migraine headaches, mid thoracic musculoskeletal back pain, mild sleep apnea and high frequency sensorineural hearing loss conditions, 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
Flatfeet; acquired 5276 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120821, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




                  Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),

 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130011067 (PD201201516)

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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