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AF | PDBR | CY2013 | PD-2013-01841
Original file (PD-2013-01841.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2013-01841
BRANCH OF SERVICE: Army  BOARD DATE: 20140605
SEPARATION DATE: 20050204


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (71M/Chaplain’s Assistant) medically separated for right anterior knee pain and pes planus and secondary plantar fasciitis. The right knee and pes planus with plantar fasciitis conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The right anterior knee pain and pes planus with plantar fasciitis conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated the right anterior knee pain as unfitting, rated 0% IAW the VA Schedule for Rating Disabilities (VASRD); the pes planus and secondary plantar fasciitis was determined to have existed prior to service, were not permanently service aggravated and therefore not compensable. The CI did not concur, demanded a Formal PEB, but later agreed with the IPEB findings and recommendations and was medically separated.


CI CONTENTION: “I received an honorable medical discharge for disabilities; however, only received 10% for R knee injury and 10% for plantar fasciitisia both feet. I have lifetime disabilities with no real compensation. I am and always will be a proud US Army Veteran. I am not proud of the care & treatment in regards to my disabilities. I served this country through 9-11 and through the DC sniper attacks. After the medical discharge, I have either lost jobs or willingly left career paths because physically I could not get the job done. I am 31 years old.”


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. The rating for the unfitting right knee and pes planus with secondary plantar fasciitis conditions are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20041018
 VA - (11.5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Right Anterior Knee Pain 5099-5003 0% Residuals, Right Knee Injury 5260 10% 20060119
Pes Planus and Secondary Plantar Fasciitis 5299-5276 EPTS Bilateral Pes Planus 5276 10% 20060119
Other x 0 (Not in Scope)
 Other x 6 20051214
Rating: 0%
 Combined Rating: 50%
Derived from VA Rating Decision (VA RD ) dated 20110923 listing historical information .


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that 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; DoDI 6040.44 defines a 12-month interval for special consideration to post-separation 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.

Right Knee Condition. The narrative summary (NARSUM) notes that the CI injured her right knee in August 2002, 30 months prior to separation, while moving furniture. According to the NARSUM, imaging of the right knee, including X-rays and magnetic resonance imaging were normal. The CI underwent arthroscopic surgery on 27 February 2004 and the diagnosis was irritation and inflammation of soft tissue (medial plica), but she continued with symptoms following the surgery. At the MEB examination on 25 May 2004, the CI continued with a stabbing pain with activities, especially involving flexion or extension of the knee, but did not want to take medications. On the MEB examination, the CI was walking with a cane and noted to have a limp. Right knee range-of-motion (ROM) was 0 degrees – 100 degrees (extension-flexion – normal 140 degrees). There was tenderness to palpation of the knee joint lines with normal strength and sensation noted. There was no instability or evidence of cartilage damage noted. Physical therapy measured right knee ROM on 14 October 2004, 4 months prior to separation at 96 degrees, 96 degrees and 100 degrees on three serial measurements and noted to be limited by pain in flexion. The right knee was permanently profiled and the commander’s performance statement noted the right knee condition impaired the CI’s duty performance.

At the VA Compensation and Pension (C&P) examination on 19 January 2006, the CI reported that she was diagnosed in the service with maltracking of the patella and medial plica. She was provided a knee brace to correct the maltracking of the right patella which did not help her symptoms and she stopped using it. At the VA examination the CI reported aching pain in her right knee aggravated by activity, that she was not taking any medications and that she used a cane for the right knee (but was not using it at the exam). The CI reported giving way of the knee when going up and down stairs, locking, stiffness and swelling after standing for more than 2 hours. The VA examination showed mild right knee joint effusion with medical joint line tenderness. Right knee ROM was 100 degrees of flexion with painful motion noted. During the exam the CI was only able to do 10 partial deep knee bends to 30 degrees due to pain, with crepitus noted. Strength was 5/5.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the right anterior knee pain 0% and coded as 5099-5003 (analogous to degenerative arthritis). The original VARD is not in the records available, but the later VARD on 23 September 2011 noted that the 10% rating for the right knee injury residuals, coded as 5260 (limitation of leg flexion) effective from the date of separation was continued. The Board deliberated the rating of the right knee condition. At the time of separation, the CI had painful ROM of the right knee. The Board agreed that this met the 10% coded either as 5099-5003 or 5260 IAW VASRD §4.59 (Painful motion). The Board reviewed to see if there was evidence to support a higher evaluation IAW VASRD 4.71a. The right knee reduced ROM did not meet the compensable threshold for limited ROM based on 5260 or 5261 (limitation of leg extension) and there was no instability or evidence of cartilage damage noted at either the MEB or VA examinations, or evidence of any other ratable impairment of the right knee.. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right knee condition, coded as 5260.

Pes Planus and Secondary Plantar Fasciitis. There were three notes in the available service treatment notes for the bilateral foot pain condition. There was a podiatry note on 30 April 2003 ordering custom shoes and an undated note with foot taping instructions and an anti-inflammatory prescription for knee pain and bilateral foot pain on 12 April 2004. The NARSUM notes that the CI requested that the MEB orthopedic examiner also examine her feet. The MEB physical exam on 25 May 2004 noted foot ROM of 20-30 degrees of dorsiflexion (normal 0-20 degrees); 30-40 degrees of plantar flexion (normal 45 degrees), with a non-tender normal posterior tibial tendon, no swelling or skin changes of the feet and the CI reported “she is tender to palpation along the plantar [bottom] surface of her foot.” The MEB examiner recommended stretching for the feet. The commander’s performance statement did not mention the bilateral foot condition. There were no temporary profiles for foot pain in the records available and the bilateral foot pain was not permanently profiled.

At the VA C&P exam 19 January 2005, 11 months after separation, the CI reported equal aching pain in both feet, increased with walking more than 15 minutes or cold weather. She was taking no medications and denied weakness, stiffness, swelling, warmth, easy fatigability or lack of endurance in either foot. She was not wearing custom shoes, but wore supportive athletic footwear with shoe inserts which were helpful as long as she did not stand or walk for more than 15 minutes. The VA examination showed bilateral moderate flatfoot, there was diffuse tenderness to palpation of the soles of both feet, with full ROM of the toes and pronation, supination of both feet. Reducible non-tender bilateral hallux valgus was noted that did not limit great toe ROM. There were no callouses or abnormal wear of either foot noted and there was normal alignment of the Achilles tendons. Feet were noted to be pronated but “not pathologically so,” without painful motion, instability or weakness and the CI was “flatfooted when standing or squatting.” Bilateral foot X-rays on 22 October 2010 noted the deformity of the great toes without other abnormalities noted.

The Board’s main charge regarding the pes planus condition is evaluation of the PEB’s adjudication that it existed prior to service and not service aggravated and therefore not ratable. However, a presumption of service aggravation may only be overcome by clear and unmistakable evidence that the natural progression of a pre-existing condition was unaltered by any consequence of military service. The guidance for conceding service aggravation, applicable to the PEB's determination and to the Board's recommendation regarding its fairness, is excerpted below from DoDI 1332.38.

The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by compelling evidence or medical judgment that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training. Such medical evidence or judgment must be based upon well-established medical principles, as distinguished from personal medical opinion alone.

E2.1.1 defines accepted medical principles as fundamental deductions, consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct.

The original VARD is not in the records available, but the later VARD on 23 September 2011 noted that “the evaluation of bilateral pes planus (claimed as flat feet) is continued as 10 % disabling [coded 5276-acquired flatfoot].”

The Board noted that the PEB may have had evidence before them not available to the Board such as the CI’s enlistment physical examination that documented the CI had bilateral pes planus prior to enlistment. Nonetheless, the PEB adjudicated the pes planus as unfitting and did not establish that it was a virtual certainty that there was not service aggravation of the CI’s bilateral pes planus condition due to military activities such as running, walking, jumping, and marching. The PEB cited a medical reference for the contention but did not explain how 5 years of military Service with its attendant physical requirements did not cause permanent worsening of the CI’s foot condition. The Board concluded that there was not clear and compelling medical evidence to overcome the presumption of aggravation, and therefore, the pes planus with secondary plantar fasciitis condition was eligible for disability rating.

The Board directs attention to its rating recommendation based on the above evidence. The Board first attempted to unbundle the combined pes planus and plantar fasciitis conditions of both feet. The bilateral plantar fasciitis condition was not permanently profiled or mentioned in the commander’s statement. The was no diagnosis of plantar fasciitis in the record prior to the MEB NARSUM evaluation and there was no evidence in the record that the plantar fasciitis impaired duty performance. Therefore the Board concluded that the bilateral plantar fasciitis was not reasonably supported by the evidence as unfitting when separated from the PEB’s combined adjudication and that disability rating could only be recommend for the pes planus with secondary plantar fasciitis condition.

At the MEB examination the CI reported bilateral foot pain without any evidence of treatment or profile limitations in the service treatment record except one or two visits over a year earlier and one prescription for anti-inflammatory medication for both knee and foot pain approximately a month earlier. Both the MEB and VA examinations indicated bilateral pes planus without evidence of marked deformity, limited ROM, painful ROM, swelling, or marked callosities, with tenderness to palpation of the bottom of both feet. The Board agreed that the pes planus with plantar fasciitis condition met the 10% rating coded as 5299-5276 (analogous to flatfoot, acquired) for moderate pain on use of the feet, whether unilateral or bilateral and did not meet the next higher evaluation of 20% described as unilateral objective evidence of marked deformity, severe pain with manipulation and use, and swelling with use. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the pes planus 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 right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5260 In the matter of the pes planus with secondary plantar fasciitis condition the Board unanimously recommends a disability rating of 10%, coded as 5299-5276 IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Right Knee Pain 5260 10%
Pes planus with secondary Plantar Fasciitis 5299-5276 10%
COMBINED 20%







The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130910, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                 
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review


SAMR-RB                                              


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXX, AR20150001226 (PD201301841)


1. 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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.

3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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