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AF | PDBR | CY2012 | PD2012 01755
Original file (PD2012 01755.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201755
BRANCH OF SERVICE: Army  BOARD DATE: 20130508
SEPARATION DATE: 20081011


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (35L/Counter Intelligence Noncommissioned Officer), medically separated for bilateral foot pain. In 2004 the CI sought treatment for long standing bilateral foot pain. The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was consequently issued a permanent P2 L3 profile and referred for a Medical Evaluation Board (MEB). The bilateral foot condition was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The MEB also identified and forwarded the seven conditions in the rating chart below, as meeting retention standards. The PEB adjudicated the bilateral foot condition as unfitting, rated 20%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and therefore not rated. The CI made no appeals, and was medically separated with a 20% combined disability.


CI CONTENTION: “I was rushed through the MEB at Ft Lewis WA and not given a complete examination, diagnosis with some of my diagnosed conditions, which would have given me more than 30% for a medical retirement.”


SCOPE OF REVIEW: The Board’s scope of review is defined in 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. Ratings for unfitting conditions will be reviewed in all cases. The rated, unfitting condition of bilateral foot pain as well as Raynaud’s phenomenon, low back pain (LBP), left knee retropatellar pain syndrome (RPPS), hemorrhoids, cervical dysplasia, pelvic pain, and bilateral wrist pain conditions as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board 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 respective Service Board for Correction of Military Records. Also, IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus 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 ratable severity at the time of separation.



RATING COMPARISON:

Service IPEB – Dated 20080710
 VA - (1 Mos Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Foot Pain
5399-5310 Rt. 10% Bilateral Pes Planus 5276 10% 20080903
Hallux Valgus, Right 5280 0% 20080930
Lt. 10%
Hallux Valgus, Left 5280 0% 20080930
Raynaud’s Phenomenon
 Not Unfitting Reynaud’s Disease 7117 20% 20080903
Low Back Pain
 Not Unfitting Lumbar Strain 5237 10% 20080903
Left Knee Retropatellar Pain Syndrome
 Not Unfitting Left Knee Retropatellar Pain Syndrome 5260 NSC 20080903
Hemorrhoids
 Not Unfitting Hemorrhoids 7336 0% 20080903
Cervical Dysplasia
 Not Unfitting Cervical Dysplasia 7612 NSC 20080903
Pelvic Pain
 Not Unfitting Endometriosis / Chronic Pelvic Pain 7629 30% 20100817
Bilateral Wrist Pain
 Not Unfitting Right Wrist Pain 5215 0% 20080903
Left Wrist Pain 5215 NSC 20080903
No Additional MEB/PEB Entries
 Other x 1 20080930
Combined: 20%
 Combined: 40%
VARD 20081218 most proximate to Date of Separation


ANALYSIS SUMMARY: The Board acknowledges the CI's contention suggesting that ratings should have been conferred for other conditions documented at the time of separation, some of which were evaluated and determined not to be individually unfitting for continued service. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The 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 service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans Affairs 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 is empowered to evaluate the fairness of fitness determinations, and to make recommendations for rating of conditions which it concludes would have independently prevented the performance of required duties (at the time of separation). With regard to the CI’s assertion that she was “rushed through the MEB…and not given a complete examination,” the Board must note for the record that it has neither the jurisdiction nor authority to scrutinize or render opinions in reference to suspected improprieties in the disposition of a case.

Bilateral Foot Pain Condition.

The CI developed bilateral foot pain in 1998 during basic training. In early 2004, her symptoms worsened as she increased her physical training. Weight-bearing X-rays obtained in September 2007 revealed mild right pes planus and a slight decrease in the left calcaneal angle, but within the normal range. The commander’s statement on 31 October 2007 (a year prior to separation) stated that her condition did not prevent her from performing MOS specific duties, but did prevent performance of normal soldiering tasks and wear of the uniform. A podiatry examination on 19 March 2008 (7 months prior to separation) noted mild edema along the posterior tibial tendons bilaterally. A Tinel’s test for tarsal tunnel syndrome was negative. Medial arches were normal, but tenderness of the posterior tibial tendons, first metatarsal heads and plantar fascia was present bilaterally. Mild painful motion of the first metatarsal phalangeal joints was noted. The diagnoses were hallux valgus, posterior tibial tendon dysfunction and plantar fasciitis (all bilateral). Various treatment options were discussed, but the CI declined surgical intervention for bunions.

At the MEB examination on 30 April 2008 (5.5 months prior to separation), the CI reported aching pain of 5-6 severity (on a 1-10 scale) in her foot arches for 6 to 8 hours per day. The pain flared for 30 to 45 minutes with standing in formation for more than 15 minutes, running, jumping, or walking greater than one mile. Painful flare-ups were relieved with rest. The CI stated that her Army boots rubbed against her bunions and caused her increased pain. Her pain was greatly reduced by wearing wide civilian sneakers. The physical examination noted bilateral hallux valgus at 20 degrees angulation, mild tenderness over each Achilles tendon and the midfoot fascia. The examiner observed “mild pes planus, but when stood on tip-toe, arch appeared in both feet.” Gait was normal. The ankle had normal range-of-motion (ROM)
(20 degrees dorsiflexion and 45 degrees plantar flexion) that did not decrease with repetition. The Achilles tendon had normal alignment bilaterally. There was no evidence of callous formation, hammer toe, high arch, or club/claw foot. At the VA Compensation and Pension (C&P) examination (performed a month prior to separation), the CI reported a 10 year history of constant bilateral foot pain described as a burning, aching, sharp and cramping and extended into both legs. Severity was 5 on a 1-10 scale. While standing or walking she had pain, weakness, stiffness, swelling and fatigue in her feet. Physical activity caused pain, while Ibuprofen, arch supports, chiropractic care and massage provided relief. She stated she could keep up with her normal work requirements, but walking was limited and running not possible. Physical examination noted a normal gait and no assistive device for ambulation. A right hallux valgus with a moderate degree of angulation, and left hallux valgus with slight degree of angulation were present. Pes planus and a slight degree of bilateral foot valgus was present. The left foot revealed painful motion, but the right foot did not. Neither foot had evidence of forefoot/midfoot mal-alignment, hammer toe, edema, disturbed circulation, weakness, atrophy of the musculature, or Morton’s metatarsalgia. She did not have any limitation with standing and walking. The examiner stated that she did require arch supports, but did not require orthopedic shoes, corrective shoes, foot supports, build-up of the shoes, or shoe inserts. There was no involvement of underlying loss of strength, weakness, fatigue, pain or impairment of the feet coordination. There were no complications from muscle injuries. Bilateral ankle dorsiflexion was 20 degrees and plantar flexion 45 degrees. The PEB assigned a 10% rating for each foot, and appropriately accounted for a bilateral factor under an analogous 5310 code (muscle Group X), judging that the fatigue and pain were of a “moderate” severity IAW §4.56. The VA assigned a 10% rating under the 5276 code (flat foot, acquired) for “moderate” bilateral pes planus. An additional non-compensable rating was given for each foot under the 5280 code for “mild” bilateral hallux valgus. The Board first examined the issue of assigning more than one rating for each foot. Although podiatrists rendered separate diagnoses for each foot, the PEB acknowledged the considerable risk of pyramiding (assigning separate ratings for overlapping disabilities), which is prohibited under §4.14. Even conceding the §4.14 issue however, recommending multiple ratings requires that each diagnosis be recognizable as a separately unfitting condition. Board members concluded that in this case assigning only one rating for each foot is appropriate. The Board agreed that under the 5310 and 5311 codes (muscle coding pathway), “moderate” was the most accurate descriptor, thereby justifying 10% ratings. The Board deliberated other pathways to a higher rating. The VA’s approach to rating both feet together under the 5276 code was an appropriate option, but the Board concluded that “severe” with “objective evidence of marked deformity” was not an accurate descriptor in this case; therefore the next higher 20% rating was not supported. The 5279 and 5280 codes offer no advantage to the CI since these options allow a maximum rating of 10% for each foot. Under an analogous 5020 coding pathway (synovitis), rating defaults to the 5003 code criteria (degenerative arthritis). However, there was no limitation of motion; and §4.40 (functional loss) or §4.59 (painful motion) provides no avenue to a rating higher than 10%. Finally, under the 5284 code (foot injuries, other) the next higher 20% rating for each foot requires a “moderately severe” condition. Board members agreed that “moderate” was the most accurate descriptor under this code, which also justifies a 10% rating for each foot. 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 bilateral foot pain condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the Raynaud’s phenomenon, LBP, left knee RPPS, hemorrhoids, cervical dysplasia, pelvic pain, and bilateral wrist pain were not unfitting. 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.

Raynaud’s Phenomenon. A vascular surgery evaluation in 2004 indicated that the CI had a “lifelong problem with hand and foot swelling and color changes in cold weather.” She had “adjusted well to her problem” and did not desire medication for treatment. A rheumatology evaluation on 4 March 2008 (7 months prior to separation) concluded that her condition was not secondary to an underlying disorder and that there were no permanent physical changes indicative of a higher level of severity. It was noted that she was able to manage symptoms by using gloves when necessary and by avoidance of triggers. Medication therapy was again declined. The examiner stated the condition met retention standards and recommended a P2 profile that allowed wear of warm weather gear as needed.

Low Back Pain. The NARSUM refers to a diagnosis of sacroiliitis associated with pregnancy in 2000. Current treatment with chiropractic care was helpful. The permanent profile for bilateral foot pain and Raynaud’s phenomenon included the diagnosis of LBP, and did not restrict lifting or upper or lower body weight training. The commander’s statement mentioned back pain among a list of medical problems.

Left Knee Retropatellar Pain Syndrome. This condition began in 1999 and required permanent L2 profiles throughout much of her time in the service. The condition was not implicated in the commander’s statement as a current issue, and it was not listed on the final permanent profile.

Hemorrhoids, cervical dysplasia, pelvic pain and bilateral wrist pain were not profiled or implicated in the commander’s statement. None of the above conditions were noted as failing retention standards. All seven conditions were reviewed and considered by the Board. There was no performance based evidence from the record that any of the seven conditions 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 any of the contended conditions and so no additional disability ratings are 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 foot pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended Raynaud’s phenomenon, LBP, left knee RPPS, hemorrhoids, cervical dysplasia, pelvic pain, and bilateral wrist pain conditions, the Board unanimously recommends no change from the PEB determinations of 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
Bilateral Foot Pain
 Right 5399-5310 10%
Left 5399-5310 10%
COMBINED (W/BLF)
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120927, 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 AR20130010768 (PD201201755)

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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