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AF | PDBR | CY2012 | PD2012 01675
Original file (PD2012 01675.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx         BRANCH OF SERVICE: NAVY
CASE NUMBER: PD1201675   SEPARATION DATE: 20020310
BOARD DATE: 20130702


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Petty Officer Third Class/E-4 (Rate DK3/Travel Disbursing Clerk) medically separated for bilateral pes planus (flat feet). The CI enlisted with a waiver for pre-existing bilateral pes planus (significant, but asymptomatic). He began experiencing foot pain within a year of entry, which persisted and was managed conservatively throughout the balance of his service. He underwent separate Medical Evaluation Board (MEB) evaluations for the condition in 2000 and 2001, both resulting in referral to a Physical Evaluation Board (PEB). The IPEB found the member fit for duty (with limitations). The IPEB considered a contended lumbar spine condition in addition to the bilateral foot condition. The CI requested a Formal PEB (FPEB) in response to the IPEB finding; and, the FPEB adjudicated bilateral pes planus (consolidating separate MEB submissions of “posterior tibial tendon dysfunction,” “severe subtalar joint pronation,” and “pes planus”) as unfitting, rated 10%, with presumptive application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The lumbar condition was determined to be Category III (not separately unfitting or contributing to the unfitting condition). The CI made no further appeals, and was medically separated.


CI CONTENTION: “The pain I am going through is not commensurate w/ the 10% disability awarded to me. I have a flat feet which conditions was worsened by my military vigorouos duties. Any prolonged standing on my 2 feet hurts my back. Currently, I don’t receive any monetary compensation from Veterans Affairs. I have tried other means privately to help alleviate my pain but I haven’t found any relief.”


SCOPE OF REVIEW: The Board’s scope of review is defined in Department of Defense Instruction (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 those conditions identified but not determined to be unfitting by the PEB, when specifically requested by the CI. The rating for the unfitting foot condition is addressed below. There is an implied request for consideration of the Category III lumbar condition, which will also be addressed. 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 Board for Correction of Naval Records.

The Board acknowledges the impairment with which the CI’s service-connected conditions continue to burden him but notes the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations, and DoDI 6040.44 prescribes a 12-month interval for special consideration to such evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. The Board also acknowledges the CI’s implied contention for rating of his low back condition which was determined to be not unfitting by the PEB and emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that a contested condition was incompatible with military duty, a Service disability rating based on the degree of disability evidenced at separation, and IAW the VASRD, will be recommended.


RATING COMPARISON:

Service FPEB – Dated 20011220
 VA (6 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Pes Planus*
 5299-5276 10% Bilateral Pes Planus* 5276 10% 20020917
Chronic Low Back Pain
 Category III Back Pain 5299-5295 NSC** 20020917
Combined: 10%
 Combined: 10%
Derived from VA Rating Decision (VARD) dated 20030710 (most proximate to date of separation [DOS]).
* Both s pecifically subsuming “posterior tibial tendon dysfunction” and “severe subtalar joint pronation”.
 * * Not Service Connected


ANALYSIS SUMMARY:

Bilateral Pes Planus. As noted above, bilateral pes planus was a waived pre-existing condition clearly of congenital anatomic etiology. The initially reported foot pain in the context of a sports injury to his right ankle 8 months after enlistment. This evolved into complaints of bilateral foot pain, which worsened after sea assignment. He was followed by podiatry and diagnosed with plantar fasciitis and posterior tibial tendon dysfunction, complicating pes planus and subtalar joint pronation (congenitally associated with pes planus). Bilateral radiographs confirmed severe pes planus and subtalar pronation. The CI continued to be followed by podiatry and orthopedics and treated with physical therapy, orthotics, non-regulation foot wear, and activity restrictions. He reported little improvement and although his commander’s non-medical assessment (NMA) noted that he remained able to fulfill the requirements of his rating, it concluded “If his condition is such as to prevent his worldwide availability, he should be separated from the Naval Service.” The narrative summary (NARSUM) noted a complaint of “unremitting chronic heel and arch pain,” “difficulty performing the physical readiness testing activities and his duties,” and “difficulty with long standing and walking.” No physical findings were entered in the NARSUM, or available in contemporary Service notes. At the VA Compensation and Pension (C&P) exam (6 months post-separation) the examiner stated, “He cannot stand on his toes or heels at any extent but he can squat. No weakness fatigability decreased endurance incoordination noted.” The VA physical exam noted a normal gait, bilateral anterior/medial ankle tenderness, bilateral hallux valgus, and lateral toe hammering.

The Board directs attention to its rating recommendation based on the above evidence. The PEB and the VA both considered the three diagnoses (tendon dysfunction, subtalar pronation, and pes planus) to be closely related and gave a single rating of 10% under code 5276 (flat foot, acquired). The PEB’s analogous use of 5276 is more accurate, since the condition was not acquired in this case. The PEB specifically noted that the diagnoses had existed prior to entry, but conceded Service aggravation. VASRD §4.71a provides no foot code other than analogous 5276 which is applicable to this case, unless resorting to the non-specific code 5284 (foot injuries, other) for separate unilateral ratings. The bilateral 10% rating under 5276 stipulates “moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet.” The next higher bilateral rating (30%) is for “severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.” The criteria for “inward bowing” and “pain on manipulation and use,” per the 10% description are closely matched with the evidence in this case. Although members considered if the “marked deformity” (pronation) criterion could be reasonably invoked in support of the 30% rating, none of the other criteria for that rating were in evidence. The specified “accentuated” pain on use is not consistent with the functional picture drawn from the above evidence. Members agreed therefore that the evidence was better aligned with the 10% description under 5271. Members deliberated separate ratings via the analogous 5284 route, but ultimately agreed that the code could not be defended IAW VASRD §4.7 (Higher of two evaluations). The ratable features as specified under 5276 are reasonably aligned with the evidence, and there was no injury consistent with the 5284 code descriptor. Therefore, even with the latitude offered by analogous rating, members agreed that 5284 did not satisfy the §4.7 requisite that it “more nearly approximates the criteria required” in comparison to 5276. 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 Lumbar Condition. Back pain, along with foot pain, was mentioned in a sick call note in 1999, although the entry elaborated only the foot complaint. Other than that, there is no treatment note for back pain in the Service record until it surfaced in the 2001 MEB proceedings for the foot condition. A spine X-ray was obtained, with normal results. The commander’s NMA was directed at a singular condition (unspecified), which was logically referencing only the foot condition. The two limited duty authorizations were specifically confined to the foot condition. The orthopedic addendum to the NARSUM noted a complaint of back pain over a span of 2 years, but specified that it was the first orthopedic evaluation. The examiner noted morning stiffness and low back pain (LBP), without radicular symptoms, increased by prolonged sitting or standing. The physical examination was characterized as “totally unremarkable, other than the fact that he has some subjective tenderness over the lumbar area.” The orthopedist’s overall conclusion is captured in the following excerpt from the addendum.
An individual with a complaint of chronic low back pain, a normal objective examination, and normal objective testing is normally not referred to the Physical Evaluation Board for disposition; however, in light of the fact that the Physical Evaluation Board has requested this Addendum, it is forwarded to them for review.
The Board’s main charge with respect to this condition is to assess the fairness of the PEB’s determination that the chronic LBP was not unfitting. The Board’s threshold for countering Service fitness determinations is higher than the VASRD §4.3 standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The lumbar condition was not clinically active for most of the Service career, was not subject to authorized physical restrictions, was not directly implicated by the NMA, was not judged to be cause for PEB referral by the orthopedic consultant to the MEB, and was not service-connected by the VA. Members agreed that there was no performance based evidence from the record that the lumbar spine condition significantly interfered with the CI’s ability to meet the physical requirements of his rating. 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 lumbar condition.


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 pes planus condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended lumbar condition, the Board unanimously recommends no change from the PEB determination as not unfitting.
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
Bilateral Pes Planus
 5299-5276 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120915, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





xx
President
Physical Disability Board of Review


 MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 11 Sep 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:
- former USN
- former USN
- former USMC
- former USN
- former USN



         xx
         Assistant General Counsel
         (Manpower & Reserve Affairs)
invalid font number 31502

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