Search Decisions

Decision Text

AF | PDBR | CY2013 | PD-2013-02342
Original file (PD-2013-02342.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02342
BRANCH OF SERVICE: Army  BOARD DATE: 20141031
SEPARATION DATE: 20071118


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E-7 (89D/EOD Specialist) medically separated for low back, right foot and right knee conditions. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). The CI was permitted to take the alternate Army physical fitness test (aerobic portion). He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded the following conditions to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501: “mechanical low back pain due to multi-level degenerative disc disease with scarring of right S1 nerve root; persistent after L5-S1 discectomy; chronic R plantar fasciitis; and bilateral pes planus with severe pronation on weight bearing, right greater than left.” The MEB also forwarded: “hypertension; and venous disease lower extremities” as medically acceptable. The Informal PEB adjudicated the low back, right foot and right knee conditions as unfitting, rated 10%, 10% and 0% respectively. Of note, the PEB specified there was no neurologic abnormality associated with the low back or right knee conditions. The remainder of the MEB referred conditions were found to be not unfitting and not rated. The CI made no appeals and was medically separated.


CI CONTENTION: “Didn’t start having back problems until after return from deployment in March 2005, I was given a profile. I was transferred to a staff position at the EOD school to teach shortly after the surgery, was given no physical therapy, other than some stretches. I still continued to have problems and was sent to see a specialist who wrote a letter saying I will continue to have or be prone to have backaches, irritation, and muscle spasms by bending, twisting or lifting more than 15lbs. I was given a permanent profile which disqualified me from my MOS 89D (formerly 55D, EOD Tech), which at the time required you to be able to lift and carry 50lbs. At that point I was sent to the medical review board to see what my options were. At that point I was treated like I was a person that was wasting the Army's time and was pushed out as soon as possible. The Medical review board lost my packet 4 times, I had to drive to FT Benning and hand carry it through the personnel clerks to get it to the Dr's. When I finally saw the Dr. it lasted all of I0 minutes and consisted of questions on why I was trying to get out versus what was actually wrong with me. After several weeks I received my proceedings results, 20%. I was informed that I could do a written appeal, but those have been coming back with lower numbers than the original findings. I was also told, by the civilians working at the processing station at Ft Benning, that I could go to FT Sam Houston and plead my case in front of the board but I would have to pay for travel myself and there was a chance they could reduce it even further. At that point I was tired of dealing with them. When I left a civilian pulled me off to the side and told me that they had been directed to process as many people out as fast as possible and that the board was "lowballing" people to save money, she suggested I go to the VA and let them take care of it.”


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 ratings for the unfitting low back, right foot and right knee 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 (BCMR).


RATING COMPARISON :

Service IPEB – Dated 20070803
 VA - (1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
S/P L5-S1 Discectomy, With Residual Low Back Pain…without Neurologic Abnormality 5243 10% Degenerative Arthritis Lumbar Spine 5242 10% 20071010
Chronic Right Plantar Fasciitis Associated With Pes Planus; (Left Pes Planus– ‘Not Unfitting’) 5299-5310 10% Right Foot Plantar Fasciitis With Arthritis Of The Ankle 5010-5284 10% 20071010
Bilateral Pes Planus 5276 0% 20071010
Hallux Valgus, Right Great Toe 5280 0% 20071010
Right Patellofemoral Syndrome, without Neurologic Abnormality 5099-5003 0% Chondromalacia Patella With Meniscus Tear Right Knee 5010-5014 10% 20071010
Other x 2 (Not in Scope)
 Other x 11 20071010
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 80204 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Board acknowledges the CI’s assertions that his disability disposition was rushed and unfair. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.

Low Back Condition. The narrative summary (NARSUM) performed 4 months prior to separation, noted that the CI had a long history of back pain, since at least 1991. He had a significant exacerbation in November 2004 during deployment to Iraq when his vehicle was hit by an improvised explosive device. An X-ray (magnetic resonance imaging [MRI]) in August 2006 showed multi-level disease with a disc protrusion at L5-S1 and he soon underwent back surgery (L5-S1 discectomy) with excellent results of leg symptoms, but return of persistent right hip and buttock pressure 3 months after surgery. A medical determination that the CI would require significant ongoing profile limitations led to his referral for MEB. The MEB examination (DD Form 2808), dated 28 July 2007 documented lower back forward flexion of 50 degrees (normal 90 degrees).

At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI had continued LBP with exam noting a normal gait, normal spine contour and a normal lower extremity neurovascular exam.
The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)		 PT ~ 7 Mo. Pre-Sep MEB ~ 4 Mo. Pre-Sep VA C&P ~1 Mo. Pre-Sep
Flexion (90 Normal) 55 50 75
Combined (240) 185 195 2 10
Comment N ormal gait N ormal gait ; normal contour
§4.71a Rating 20 % 20 % (PEB 10%) 10 %

The Board directs attention to its rating recommendation based on the above evidence. The PEB disability description noted only the combined ROM for their 10% rating. Both the physical training (PT) and MEB exams’ had similar ROM measurements warranting a 20% rating for forward flexion not greater than 60 degrees, while the VA exam reflected greater ROM warranting a 10% rating. The Board considered that the surgery was over 10 months prior to the MEB exam and records consistently documented return of pain following surgery with disk disease at other spine levels. The Board discussed the probative values of the exams and determined that the combination of exams best described the CI’s disability picture. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition.

Right Foot Condition. The NARSUM dated 3 July 2007 noted that the CI complained of persistent right foot pain (“with a fallen arch”) that began after a PT test a year previously; he also recalled a popping noise at the bottom of the right foot while running during the test. The primary diagnosis for this pain was plantar fasciitis, although magnetic resonance imaging (MRI) on 27 May 2005 showed a bony injury in the foot (arthritic) that could correlate with his clinical symptoms. Orthotics and steroid injections did not resolve symptoms. An Army and a civilian podiatrist both characterized the CI’s foot condition as “right plantar fasciitis” and bilateral pes planus, more severe on the right. Exam documented pes planus, normal motor and sensory exam and was positive for varicose veins. Ankle ROM was dorsiflexion 5 degrees (normal 20 degrees) and plantar flexion of 55 degrees (normal 45 degrees). Treatment notes had indicated tenderness of the foot.

The history reported in the VA C&P exam performed a month prior to separation (10 October 2007) was very similar. Physical examination showed normal gait with ROM of the right ankle of dorsiflexion 20 degrees (normal 20 degrees) and plantar flexion of 5 degrees (normal 45 degrees). The right foot showed decreased arch (pes planus), no deformity, moderate tenderness on the bottom of the foot (plantar surface) and an abnormal deviation of the big toe ( hallux valgus). The diagnoses of the right foot were plantar fasciitis, pes planus, and hallux valgus (great toe). X-rays showed mild degenerative arthritis of the right ankle.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the right foot at 10% coded 5399-5310 (Group X Muscle Injury, 10%, “Moderate”). The VA rated the right ankle and foot at 10% coded 5284 (Foot injuries, other; “moderate symptoms”) with two additional 0% ratings for 5276 (Flatfoot, acquired [pes planus] “Mild”) and 5280 (hallux valgus). The Board considered that the disability conditions of the foot had overlapping symptoms and considered a possible higher rating-level under 5284 (considering all foot/ankle conditions) or 5310 (muscle coding). The Board adjudged that the record did not support a “moderately severe” level for a 20% rating and there was insufficient evidence for two compensable ratings under multiple diagnostic codes, was not supported by the evidence. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found that both the VA and PEB evaluations adequately cha racterized the CI’s disability and either rating schema resulted in a 10% disability rating. The Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right foot condition.

Right Knee Condition. The NARSUM noted that the CI reported right knee swelling from playing football in January 1999, an examination was consistent with a (left collateral) ligament strain and he was treated accordingly. He injured his left knee (opposite side) in January 2001 and required surgery (arthroscopy) in April 2001. The left knee subsequently did well, but he had increased right knee pain and an X-ray (MRI) in August 2006 showed chondromalacia (arthritis) and a tear of the lateral meniscus (cartilage in the knee). He was diagnosed with patellofemoral syndrome with chondromalacia of the right knee. On the MEB ROM examination performed 4 months prior to separation; the CI had ROM of 5-115 degrees (normal 0-140 degrees) with passive ROM to 120 degrees. The examiner reported that the motion was “… limited by pain and/or joint stiffness at end range.”

At the VA C&P exam performed a month prior to separation, the CI reported stiffness, giving way and lack of endurance of the right knee. The CI reported pain in the knee twice a week, for 2 hours each time; he also claimed that he had to limit his activities due to this condition. Physical examination showed crepitus (crackling sounds with movement) but no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation (laxity), or guarding of movement. ROM was 0-115 degrees (normal 0-140 degrees) with no change on repetition.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the knee on passive ROM at 0%; however, the active ROM was pain-limited (less than the passive ROM) and would warrant a rating of 10% IAW VASRD §4.59 (painful motion). The VA reported decreased ROM, did not mention pain, but noted imaging of a meniscal tear and crepitus of the knee. The Board considered alternative coding analogous to 5259 (Cartilage, semilunar, removal of, symptomatic) at 10% would have been supported for the VA exam findings. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59 (painful motion), the Board recommends a disability rating of 10% for the right knee condition, using VASRD code 5299-5310.


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. It appears that PEB reliance on the USAPDA pain policy or AR 635-40, B29 for rating the right knee condition was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board. In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a. In the matter of the right foot condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5310 IAW VASRD §4.71a. In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5010-5014 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Status Post L5-S1 Discectomy, with Residual Low Back Pain and Multi-Level Degenerative Disc Disease 5243 20%
Chronic Right Plantar Fasciitis Associated with Pes Planus 5299-5310 10%
Right Patellofemoral Syndrome, without Neurologic Abnormality 5010-5014 10%
COMBINED 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131111, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record









                          
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150005543 (PD201302342)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

Similar Decisions

  • AF | PDBR | CY2013 | PD-2013-01542

    Original file (PD-2013-01542.rtf) Auto-classification: Denied

    There was extremely limited service treatment record (STR)in evidence related to the low back pain condition for the Board to consider for rating recommendation. Bilateral Hip Pain .The PEB combined the bilateral hip pain conditions under a single disability rating analogously coded, 5003. As noted above, the Board,IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each...

  • AF | PDBR | CY2011 | PD2011-01101

    Original file (PD2011-01101.pdf) Auto-classification: Approved

    An additional combined condition, “secondary low back and bilateral knee pain” was forwarded as “not boardable.” The PEB (via an Informal Reconsideration following an appeal) conceded aggravation of the congenital podiatric conditions; and, consolidated three of the MEB submitted conditions (as specified in the PEB’s DA Form 199 language quoted below) as a single unfitting condition characterized as “Painful feet on [sic] ankles due to plantar fasciitis and posterior tibial tendonitis with...

  • AF | PDBR | CY2011 | PD2011-00565

    Original file (PD2011-00565.docx) Auto-classification: Denied

    Please re-evaluate my Medical Evaluation Board from the Army and my medical records from my extensive period of active duty service (11 years, 5 months total) as well as VA medical records.” Bilateral Foot Pain Condition . The Board thus recommends separate 10% ratings for each foot under the code 5399-5310.

  • AF | PDBR | CY2013 | PD-2013-02034

    Original file (PD-2013-02034.rtf) Auto-classification: Approved

    Left Shoulder Pain . In the MEB NARSUM, the diagnosis for his shoulder condition was: “Left shoulder pain with impingement syndrome, status post arthroscopic stabilization.” The CI’s physical profile (DA Form 3349) did not allow lifting over 10 pounds or performing profile.At the 28 February 2005 C&P exam, performed 3 months prior to separation, the CI reported that the left shoulder condition did not interfere with ordinary lifting/carrying, activities of daily living, or service...

  • AF | PDBR | CY2011 | PD2011-00386

    Original file (PD2011-00386.docx) Auto-classification: Approved

    The PEB adjudicated the lumbar condition as unfitting, rated 10%, with presumptive application of the US Army Physical Disability Agency (USAPDA) pain policy. The MEB exam followed a pre-separation VA Compensation and Pension (C&P) exam performed two months earlier; at which the CI had related significantly more severe pain with bilateral radiation, and more significant physical limitations. In the matter of the pes planus with plantar fasciitis condition, the Board unanimously recommends...

  • AF | PDBR | CY2014 | PD-2014-01418

    Original file (PD-2014-01418.rtf) Auto-classification: Approved

    The CI’s chronic bilateral foot pain, chronic low back pain (LBP), plantar fasciitis and pes planus conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The IPEB did not address the remaining conditions (plantar fasciitis, pes planus and adjustment disorder).The CI appealed to the Formal PEB (FPEB) which reaffirmed the IPEB’s findings for the chronic low back condition as unfitting, rated at 10%, but changed the chronic foot pain (bilateral) diagnosis to bilateral...

  • AF | PDBR | CY2011 | PD2011-01102

    Original file (PD2011-01102.docx) Auto-classification: Approved

    The PEB adjudicated the bilateral, plantar fasciitis and bilateral flat feet conditions as unfitting, rated 0%, with application of the U.S. Army Physical Disability Agency (USAPDA) pain policy. It noted the progression of the bilateral foot pain despite conservative treatment and limitation of activities; “currently, her feet still hurt and she is not doing any high impact activities but the pain is starting to increase.” The examination documented bilateral pes planus and tenderness on...

  • AF | PDBR | CY2012 | PD-2012-01245

    Original file (PD-2012-01245.txt) Auto-classification: Denied

    The NARSUM documented a normal neurological examination and ROM. The conditions adjudicated as not unfitting by the PEB and that were also contended by the CI are right foot pain secondary to pes planus, plantar fasciitis, and fractured 4th phalanx, right shoulder bursitis, bilateral knee osteoarthritis, and DDD of the cervical spine. An MRI of the left knee on 8 May 2006 (2 months prior to separation) was normal.

  • AF | PDBR | CY2011 | PD2011-00636

    Original file (PD2011-00636.docx) Auto-classification: Approved

    Bilateral Foot Condition . Secondly, the congenital pes planus condition itself was not service-aggravated; rather, the painful complications of plantar fasciitis and/or tendinitis were the service-acquired and unfitting conditions (e.g., subject to disability rating). In the matter of the bilateral plantar fasciitis condition, the Board unanimously recommends that each foot be separately adjudicated as follows: an unfitting right plantar fasciitis condition coded 5399-5310 and rated 10%;...

  • AF | PDBR | CY2013 | PD-2013-01841

    Original file (PD-2013-01841.rtf) Auto-classification: Approved

    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. Post-Separation) ConditionCodeRatingConditionCodeRatingExam Right Anterior Knee Pain5099-50030%Residuals, Right Knee Injury 526010%20060119Pes...