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AF | PDBR | CY2013 | PD2013 00164
Original file (PD2013 00164.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX        CASE: PD 13-00164      
BRANCH OF SERVICE: Army          BOARD DATE: 20130702
SEPARATION DATE: 20050821                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A, Automated Logistical Specialist) medically separated for three conditions. The military entrance exam noted moderate, asymptomatic pes planus. In 2001 he injured his left ankle playing basketball, which was followed by repeated complaints of bilateral ankle pain. Bilateral ankle pain and pes planus (flat feet) were treated conservatively, and included physical therapy, anti-inflammatory medications and custom orthotics. In 2003 the CI deployed to Iraq, where he reported worsening ankle pain as well as a new complaint of shortness of breath subsequently diagnosed as asthma. These three conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3-L3 profile and referred for a Medical Evaluation Board (MEB). The three conditions, characterized as “chronic bilateral ankle pain…”, “pes planus”, and “moderate persistent asthma” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated asthma at 10%; bilateral ankle pain at 0%, with application of the U.S. Army Physical Disability Agency (USAPDA) pain policy; and bilateral pes planus at 0%, with application of Department of Defense Instruction (DoDI) 1332.38. The CI made no appeals and was medically separated with a combined 10% Service disability rating.


CI CONTENTION: The CI elaborated no contention in his application.


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 Service ratings for the unfitting asthma, bilateral ankle pain, and bilateral pes planus conditions are addressed below. Any conditions or contention not requested in this application or otherwise outside the Board’s defined scope of review remain eligible for consideration by the Service Board for Correction of Military Records.


RATING COMPARISON :

Service PEB – Dated 20050613
 VA - (~7 Yrs. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Asthma 6602 10% No Corresponding VA Entry
Chronic Pain Bilateral Ankles 5099-5003 0% No Corresponding VA Entry
Bilateral Pes Planus 5399-5310 0% No Corresponding VA Entry
No Additional MEB/PEB Entries
 Other x 6 20121025
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 2 0 121128 .


ANALYSIS SUMMARY:

Asthma Condition. The service treatment record (STR) noted an exam in August 2004 at which the CI complained of shortness of breath and chest tightness, and was anxious and hyperventilating. The lung exam revealed clear breath sounds with rapid, shallow breathing, and an electrocardiogram showed a rapid but otherwise normal heart rhythm. Pulmonary function testing (PFT) was normal. Initial visits concluded that symptoms were due to anxiety. In October 2004 a cardiac stress test was terminated once target heart rate was achieved, which occurred after over eight minutes of exercise and 10 metabolic equivalents of workload (indicating an above average functional capacity). There was no chest pain and no report of unusual shortness of breath. The test was considered normal. Three computerized tomography (CT) scans during September - November 2004 concluded with a diagnostic impression of right hilar and paratracheal calcified lymph nodes, compatible with old granulomatous disease. Pulmonary exams noted a history of resting and exertional shortness of breath since deployment to Iraq, associated with warm and humid weather. All lung exams and laboratory tests were normal. At a pulmonary exam with PFT in January 2005, the CI reported use of an inhaled bronchodilator 1-2 times per week, and no exacerbation of symptoms since September 2004. The PFT showed no significant change in FEV-1 or FEV-1/FVC after administration of a bronchodilator; but a methacholine challenge test was positive for bronchial hyperreactivity. The pulmonologist stated that the clinical significance of the positive test in the absence of obstruction was not clearly established. The pulmonologist attributed the PFT results to possible sarcoidosis, but a subsequent gallium scan ruled this out. A pulmonary note on 3 March 2005 reported the CI used inhaled albuterol 1-2 times per week. The pulmonologist stated that PFTs suggested the presence of vocal cord dysfunction, but that further evaluation to rule out this condition was warranted only if there was no response to a trial of the prescribed asthma medication. A diagnosis of moderate, persistent asthma was recorded and the CI was prescribed a trial of a twice daily inhaled bronchodilator anti-inflammatory combination medication (Advair). A medication profile indicated that the medication prescription was filled on that same day. An MEB addendum on 4 April 2005 reported that Advair was being used twice per day, and that albuterol was required 2-3 times per week for episodes of shortness of breath that were usually related to exertion but occasionally occurred at rest. A second opinion from a civilian pulmonologist on 12 April 2005 indicated that the use of Advair and albuterol did help with his symptoms of wheezing, coughing and shortness of breath, but frequency of symptoms was not specified. The CI was advised to continue using Advair twice daily. The final narrative summary (NARSUM) in May 2005 notes the CI’s report of shortness of breath and chest tightness 2-3 times a week, mostly with exertion and worse at night; symptoms were reported worsened with fast walking and running, walking up three flights of stairs, or any type of aerobic activity; and by exposure to chemical fumes, hot and cold weather, and dust. Prescribed medications included inhaled Advair twice per day and a separate inhaled bronchodilator as needed. The lung exam was normal. A review of the available record showed no visits for acute shortness of breath that documented objective clinical findings of asthma, such as wheezing on lung auscultation or low oxygen saturation measurements. There were three PFTs in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.
invalid font number 31502
Pulmonary Exam
 Pulmo ~9 Mo. Pre-Sep Pulmo ~7 Mo. Pre-Sep Pulm ~ 5.5 Mo. Pre -Sep
FEV1 (% Predicted)
 132 14 4 119
FEV1/FVC
 92 % 94 % 100 %
Meds
 N one Albuterol 1-2 times/week Albuterol 1-2 times/week
§ 4.97 Rating
 0 % 10 % 10%

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under code 6602 (asthma, bronchial), citing normal spirometry on intermittent inhalational bronchodilator therapy. Although the PFTs supported a non-compensable rating, Board members agreed that a 10% rating was justified by the use of intermittent inhaled bronchodilator therapy. The next higher 30% rating requires daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. The Board deliberated the issue of whether the requirement for daily bronchodilator and/or anti-inflammatory therapy was met in this case, as that is the pivotal criteria between a 10% or 30% rating IAW VASRD §4.97. The Board takes the reasonable position that the evidence should satisfy an assumption that the treatment regimen supporting the higher rating is necessary to maintain good control of the condition. The Board deliberated that prior to the first prescription for Advair on 3 March 2005, the CI reported the need for albuterol once or twice per week. Although the CI reported to the civilian pulmonologist the following month that the Advair was helpful, frequency of symptoms and use of albuterol was not discussed; and the CI’s statement that Advair was helpful was not supported by the MEB addendum and subsequent NARSUM report that indicated respiratory symptoms and the use of albuterol for acute symptoms were not less frequent. It was finally noted that an exercise treadmill test was normal, and did not report unusual shortness of breath or early test termination due to asthma related symptoms despite the CI’s primary complaint of exertional shortness of breath. The lack of response to Advair raises serious questions about whether it was in fact necessary to maintain control of his respiratory problems. The Board also noted there were no obstructive findings on any PFT, no physical examination findings consistent with asthma on any acute clinic visit and the pulmonologist’s suspicion that another condition was present (i.e. vocal cord dysfunction). Board members therefore concluded that the requirement for the higher evaluation was not met. 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 asthma condition.

Chronic Bilateral Ankle Pain Condition. The STR indicates a left ankle sprain in February 2001 and a normal X-ray. An orthopedic surgery exam in September 2002 reported a history of a right ankle fracture with casting for six weeks in November 2001, but no other details of this event are available. Recurrent right ankle sprains were documented beginning in May 2002. X-rays to evaluate bilateral ankle pain (July 2002) showed a normal left ankle and a small, demineralized bone fragment in the area of the right medial joint space which possibly represented an intra-articular body or an old un-united fracture. A bone scan (August 2002) showed mild uptake in the left medial malleolus most likely representing an overuse injury or stress reaction, and lesser uptake in the right medial malleolus. A CT scan of the bilateral ankles showed normal bone structure, with osteophyte and subchondral cyst formation around the medial left ankle and mild spurring around the middle talocalcaneal facets bilaterally. Magnetic resonance imaging of the ankles was normal with a benign appearing lesion around the right anterior lateral calcaneus and a possible prior tear of the left anterior talofibular ligament. Outpatient notes documented intermittent bilateral ankle pain rated 5-8/10 (1-10 scale) with full range of motion, normal strength, and no evidence of instability; concurrent presence of Achilles tendonitis was noted. The NARSUM notes the CI’s report of bilateral “tight and achy” pain about 50% of the day and swelling of the ankles about twice a week with physical activity. The pain was worse with wearing boots, standing more than 15 minutes, walking more than one mile, lifting more than 20 pounds, running, jumping, marching, or driving more than one hour. Physical exam of the ankles noted no effusion or instability. Range of motion (ROM) for right dorsiflexion was 25 degrees and the left was 10 degrees (normal to 20 degrees); plantar flexion was 45 degrees bilaterally (normal); the examiner noted pain at the end point of ROM. Strength was 5/5 (normal) with dorsi- and plantarflexion. Sensation and the Achilles tendon reflex were normal; there was mild tenderness without crepitus of the right Achilles tendon. Gait was normal and the CI was able to walk on toes and heels.

The Board directs attention to its rating recommendation based on the above evidence. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting; and, that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting. Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. The Board agreed that, in this case, it would be overly speculative to conclude that either ankle was not unfitting. The PEB assigned a 0% rating under an analogous 5003 code (degenerative arthritis), applying the USAPDA pain policy. Board members agreed that the ROM at the NARSUM exam did not warrant a rating for “moderate” limitation of motion for either ankle under code 5271; and there was no pathway to a minimum rating under the 5270 or 5272 codes in the absence of ankylosis. The Board carefully considered the option of rating the ankles together. A bilateral rating of 10%, coded 5099-5003, is a good analogy to both the pathology and disability. Since rating analogously defaults to 5003 rating criteria without regard to confirmed radiographic findings, a 10% rating for two major joints is supported. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10% for the bilateral ankle condition, coded 5099-5003.

Bilateral Pes Planus. The STR reported foot pain in September 2002 and ongoing reports of pes planus. The CI was fitted with custom orthotics in 2002. Subsequent clinical notes mentioned the presence of pes planus only in the context of ankle or Achilles tendon pain. There was no further mention of foot pain until the MEB process. The NARSUM notes the CI’s complaint that foot and ankle pain interfered with holding his infant child, running after his children, and playing basketball or softball. The examiner rated the overall pain presentation as occasional and slight. Physical exam described decreased medial longitudinal arches and mild over-pronation bilaterally; and bilateral forefoot varus deformity; pulses were normal. As previously noted, the gait was normal and the CI could walk on toes and heels. The commander’s statement was silent regarding duty limitations attributable to pes planus.

The Board directs attention to its rating recommendation based on the above evidence. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting; and, that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting. Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. The Board agreed that, in this case, it would be overly speculative to conclude that either foot was not unfitting. The PEB assigned a non-compensable rating under an analogous 5310 muscle injury code (Group X). The PEB acknowledged that the condition existed prior to service but determined that the condition was subsequently aggravated by service and rendered the CI unfit. The pes planus condition did not meet criteria for a muscle disability based on the lack of injury and clinical findings IAW VASRD §4.56 (evaluation of muscle disabilities). Board members agreed that the condition was better represented by code 5276 [flatfoot, acquired: (pes planus)]; but, “weight-bearing line over or medial to great toe, inward bowing of the tendo achillis (Achilles tendon), pain on manipulation and use of the feet, bilateral or unilateral” were not present in the NARSUM exam to warrant a 10% rating. Board members agreed that there was no muscle atrophy, disturbed circulation and weakness to justify a compensable rating under code 5277 (weak foot, bilateral). The Board also considered whether the symptoms of the pes planus depicted a “moderate” level of impairment under code 5284 (foot injuries, other), but concluded that the examination findings were not consistent with this 10% rating criterion. Finally, Board members debated whether the symptoms of the bilateral pes planus were severe enough to warrant application of §4.40 (functional loss) or §4.59 (painful motion); ultimately the Board concluded there was not sufficient evidence to support this approach. 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. The Board also concluded that there is no point in recommending a change in VASRD code since the PEB’s 0% rating is considered appropriate.


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 bilateral ankle pain, and DoDI 1332.38 for rating pes planus, was operant in this case and the conditions were adjudicated independently of those policies by the Board. In the matter of the asthma condition and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudication. In the matter of the chronic bilateral ankle pain condition, the Board by a vote of 2:1 recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. The single voter for dissent (who recommended no change in the PEB adjudication) did not submit an addended minority opinion. In the matter of the bilateral pes planus condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. 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
Asthma 6602 10%
Chronic Pain Bilateral Ankles 5099-5003 10%
Bilateral Pes Planus 5284 0%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130407, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                          
         XXXXXXXXXXXXXXXXXXXXXXXXX, DAF
         Director of Operations
         Physical Disability Board of Review


SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for xxxxxxxxxxxxxxxxxxxxx, AR20130021861 (PD201300164)


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                                                  xxxxxxxxxxxxxxxxxxxxxxx
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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