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AF | PDBR | CY2013 | PD-2013-02429
Original file (PD-2013-02429.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02429
BRANCH OF SERVICE: Army  BOARD DATE: 20150213
SEPARATION DATE: 20040610


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Military Police) medically separated for bilateral foot pain with a clinical diagnosis of bilateral sesamoiditis and back pain as a single unfitting condition. The bilateral foot condition and back pain could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Bilateral sesamoiditis and myofascial back pain were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB adjudicated bilateral foot pain and back pain as a single unfitting condition, rated 10%, referencing application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “I was discharged with a 10% rating from the Dept of the Army but received a 90% service connected rating from the VA.”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20040428
 VA - (7 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Foot Pain...
Bilateral Sesamoiditis and Back Pain		 5099-5003 10% Bilateral Foot Condition 5299-5278 0% 20050113
Back Condition 5299-5237 NSC 20050105
Other x 0 (Not in Scope)
 Other x 2
Rating: 10%
 Rating: 0%
Derived from VA Rating Decision (VA RD ) dated 200 50608 ( most proximate to date of separation [ DOS ] ).

ANALYSIS SUMMARY: The PEB combined the bilateral foot pain and back pain conditions under a single disability rating, coded analogously to 5099-5003. Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as unfitting in order to remain eligible for rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. To that end, the evidence for the bilateral foot pain and back pain conditions are presented separately; with attendant recommendations regarding separate unfitness, and rating if indicated.

Bilateral Foot Pain. The narrative summary (NARSUM) stated that the CI’s foot pain started in May 2003 during a training exercise after being pushed out a window and landing on a pile of stone and brick. He continued to have bilateral foot pain and was diagnosed with bilateral sesamoiditis (overuse injury involving inflammation of the sesamoid bones and tendons in the ball of the foot, beneath the great toe). Radiographic evaluation confirmed bilateral sesamoiditis and a stress fracture of the right foot. Imaging 8 months prior to separation showed subtle edema within bilateral medial sesamoid bones, no fracture, and no other bony or soft tissue edema. At the MEB exam, 6 months prior to separation, the CI reported the use of orthopedic insoles for his sesamoiditis. The MEB physical exam documented tenderness to palpation (TTP) of the bilateral foot pads and tenderness with passive range-of-motion (ROM) of both great toes. At the NARSUM examination, performed 4 months prior to separation, the CI stated that he was unable to run or walk without getting pain in his feet and that his pain increased from 4/10 to 7/10 as the day progressed. His pain continued despite medications, rest, cushioning, immobilization and steroid injections. Ankle dorsiflexion was referenced as slightly weakened (4/5) on each side with normal reflexes.

At the VA Compensation and Pension (C&P) exam performed 7 months after separation, the CI reported that daily and constant pain in his toe joints severely limited his ability to work and perform daily activity. There were no periods of incapacitation. The examiner documented an antalgic gait (“patient is shifting all his weight to the lateral aspect of the foot bilaterally”) with wear on the outer aspects of his shoes, and noted acute pain on palpation of bilateral sesamoids and on dorsiflexion of the great toes (painful motion). Ankle ROM was noted as limited to 10 degrees (normal 20) with plantar flexion of 5 degrees (normal 45) bilaterally. The great toe dorsiflexion was 10 degrees (clinical normal 80) and plantar flexion of 5 degrees (clinical normal 30) bilaterally.

The Board first considered if the PEB diagnosis of bilateral sesamoiditis was reasonably justified as unfitting (as established above). Both feet were considered to fail retention standards; both were implicated by the NARSUM and both were profiled. Members agreed that the evidence supported the bilateral sesamoiditis had functional limitations and could be reasonably justified as unfitting. Radiographic evaluation of both feet indicated bilateral sesamoiditis with the additional finding of a right foot stress fracture, the disability attendant to only the right foot cannot be isolated by the clinical evidence, or extricated from the fitness implications of the bilateral limitations. There were no unilateral distinctions with regards to clinical features or fitness considerations. It is speculative to conclude that the disability confined to a single foot would not have rendered the CI incapable of performing his MOS; therefore each foot was considered reasonably unfitting.

The Board directed attention to its rating recommendation based on the above evidence. The Informal PEB adjudicated bilateral foot pain and back pain as a single unfitting condition, rated 10%, referencing application of the pain policy (using analogous coding 5099-5003 for degenerative arthritis). The VA initially rated the feet 0% coded 5299-5278 (analogous to pes cavus, acquired) citing “only slight symptoms of clawfoot.” The VA rating for the feet was increased to 10% each coded 5278 (combined 20%) effective in 2010, with other rated conditions added in 2012.

Analogous VASRD rating codes 5003 (or 5022 periostitis, or 5024 tenosynovitis which use the 5003 criteria of involvement of 2 or more minor joint groups); 5284 (Foot injuries, other); 5279 (metatarsalgia); and 5278 (Claw foot [pes cavus], acquired) were considered. There is VASRD §4.71a latitude for rating each foot condition separately under code 5284 (Foot injuries, other). The CI clearly had a precipitating injury to his feet and an additional finding of a stress fracture (on the right) and weakened or decreased ankle ROM. The symptoms were not relieved by orthotics and the severity of each foot was adjudged as closest to the “moderate” level of impairment. Therefore the Board, by concensus, recommends separate disability ratings of 10% each for the left and right foot conditions coded 5299-5284 (Foot injuries, other).

Back Pain. The NARSUM stated that after 4 weeks of using crutches for his feet problems, the CI started having back problems. He stated that he was unable to carry his backpack or fire a weapon and unable to bend or stand for prolonged periods of time without causing significant pain in his lower back. The NARSUM referenced an exam in November 2003 that documented “multiple taut bands in low thoracic and lumbar paraspinals [muscles] with seer (severe) TTP.” Radiographic evaluation did not show any abnormalities of the lumbar spine and the CI was diagnosed with myofascial low back pain (LBP). At the MEB exam, the examiner noted TTP of the bilateral thoracic para spinal muscles. The NARSUM indicated testing for radicular symptoms was negative and the record did not indicate any lower extremity neurosensory deficits attributable to the back condition. ROM testing 2 months prior to separation was by a dual inclinometer (not goniometric IAW VASRD compliant evaluations) and indicated some decrease with repetitive motion (that was not able to be aligned with a specific goniometric ROM decrease).

The VA C&P examination, completed 7 months after separation, documented a thoracolumbar flexion of 0-60 degrees (normal 0-90 degrees), “painful at 60 degrees,” pain that increased with repetitive movements and posture described as “stiffness with range of motion.” The examiner stated, “with no clear history of any acute (severe) back trauma or disease, grossly normal physical examination, normal neurological exam, normal lumbosacral spine MRI (February 2004) and EMG (neuromuscular testing from November 2003) studies, a no more precise diagnosis than [low back pain syndrome] is possible.”

The Board first considered if the myofascial LBP, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. The back pain condition was profiled and was considered to fail retention standards by the NARSUM examiner and the MEB. The PEB included the MEB back pain condition bundled as unfitting with the CI’s bilateral foot condition addressed above. The commander’s statement did not address any specific medical condition. The Board considered the CI’s MOS (Military Police) and the potential overlap of duty limitations attributable to the feet and/or the back condition as well as NARSUM indication that there was specific referral into an MEB for the back condition. The Board considered if the low back condition was a chronic disability or a temporary condition (acute and transitory due to the strain of using crutches. There was no underlying pathology or abnormal imaging, but the myofascial LBP diagnosis was essentially equivalent to low back strain. The treatment record indicated back tenderness as well as at least slight decreased ROM and possibly pain-limited ROM. The VA exam documented pain-limited ROM, without abnormal imaging and no formal diagnosis except “low back pain syndrome” which the VA considered to not be a compensable diagnosis.

Member consensus was that, based on the above evidence, there was a questionable basis for arguing that the back was separately unfitting or chronic. The well-established principle for fitness determinations is that they are performance-based. The Board could not find significant evidence in the commander’s statement or elsewhere in the service treatment record that documented significant interference of the myofascial LBP with the performance of duties at the time of separation, nor were any physical findings documented by the MEB which would logically be associated with significant disability. The short duration of the back pain and onset with the use of crutches for the feet condition likely represented a transient and secondary condition. The VA did not give service-connection, stating that it must be considered “chronic” and that there was no objective evidence of permanent residual or chronic disability.

After due deliberation, member consensus was that the evidence did not support a conclusion that the functional impairment from the myofascial LBP was reasonably integral to the CI’s inability to perform his duties; and, accordingly adjudged that it was not separately unfitting and therefore cannot recommend a separate rating for it.


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. As discussed above, PEB reliance on the USAPDA pain policy for rating the bilateral sesamoiditis and myofascial back pain conditions were operant in this case and the conditions were adjudicated independently of that policy by the Board. In the matter of the combined bilateral sesamoiditis (foot) condition, the Board majority recommends that each joint be separately rated as follows: an unfitting right foot condition coded 5299-5284 and rated 10%, and an unfitting left foot condition, coded 5299-5284 and rated 10%, both IAW VASRD §4.71a. In the matter of the contended LBP condition, the Board agrees that it cannot recommend it for additional disability rating. 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 his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Bilateral Sesamoiditis Left 5299-5284 10%
Right 5299-5284 10%
Lumbosacral Strain Not Unfitting
COMBINED w/BLF 20%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131119, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXX
President
DoD 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, AR20150010425 (PD201302429)


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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