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AF | PDBR | CY2014 | PD-2014-02373
Original file (PD-2014-02373.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-02373
BRANCH OF SERVICE: Army  BOARD DATE: 20140916
SEPARATION DATE: 20051120


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (88M/Transport/Loader) medically separated for bilateral foot pain. The feet could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty. Her profile allowed for an alternate aerobic event to satisfy physical fitness standards. She was issued a permanent L3/S1 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded “Chronic pain, bilateral feet, related to multiple stress fracture events in the bilateral calcaneus and metatarsals” to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions. The Informal PEB adjudicated “chronic bilateral foot pain secondary to stress reactions in both feet…)” as a condition existing prior to service but was permanently service aggravated and rated at 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining condition s were determined to be not unfitting therefore not ratable . The CI made no appeals and was medically separated.


CI CONTENTION: “Please consider all conditions.”


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 bilateral feet is addressed below. The contended adjustment disorder with depression and panic disorder, which were determined to be not unfitting by the PEB, are likewise 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 20050825
 VA - Based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Bil Foot Pain… 5099-5002 0% Residuals, Stress Fractures … 5284 0% STR
Adjustment Disorder… Not Unfitting Adjustment Disorder, Depression… 9434 NSC** STR
Panic Disorder Not Unfitting
Other x 0 (Not in Scope)
 Other x 1
Rating: 0%
 Combined: 0%
Derived from VA Rating Decision (VA RD ) dated 200 60208 ( most proximate to date of separation) *Increased to 10% (each foot) on the 20070605 VARD based on the 20061025 VA examination done after surgery. * *The 20070216 VARD separated Depression secondary to the foot pain and service connected with a 50% rating effective DOS based on 20061101 C&P exam . Both were retroactive to separation


ANALYSIS SUMMARY: 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; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation. The PEB combined the two feet as a single unfitting condition, coded analogously to 5002 and rated at 0%. The PEB may have relied on AR 635.40 (B.24 f.) for not applying separately compensable VASRD codes. 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.

Chronic Bilateral Foot Pain Secondary to Stress Reactions in Both Feet. The CI reported a history of bilateral foot pain beginning in basic training. Therapy included orthotics, duty limitations and medications, but without adequate benefit to return to full duty. A bone scan in December 2004 revealed increased uptake at the base of the middle toes of the left foot consistent with a stress fracture and a healing stress fracture of the right heel bone (calcaneus). The bone scan was repeated in April 2005 (7 months prior to separation) and showed persistence of these findings. Range-of-motion (ROM) was normal at a podiatry evaluation on 10 May 2005 (6 months prior to separation).

At the MEB examination dated 19 May 2005, the CI reported constant pain in her heels and all areas of the feet. The examiner noted tenderness over the bottom of both feet, but without warmth, redness or swelling. The narrative summary (NARSUM) was dictated a month later. The CI reported bilateral foot pain especially in the heels and forefeet and an inability to perform prolonged walking or standing. The ankle ROM was noted to be pain free and ten degrees bilaterally, but without further detail. Some pain in the back of the feet was noted with turning the foot in and out. Sensation was normal. Comments on her gait were omitted. Following separation, the CI underwent surgery of the left and then the right foot for plantar fasciitis (approximately 7 months after separation), respectively. This diagnosis was not made while on active duty.

During the VA Compensation and Pension (C&P) examination on 25 October 2006 (over 11 months after separation), the CI reported ongoing pain in her feet. However, she was able to work part-time in a doctor’s office. On examination, her gait was normal and she was able to walk on her heels and toes although the latter caused some discomfort on the left. The left foot showed some pain with motion whereas the right did not. The right heel and left forefoot were tender. No instability was present nor was there abnormal shoe wear. She reported a patch of diminished sensation on the left lateral (outside) calf and electrodiagnostic studies showed some abnormality of the deep peroneal nerve.

The Board directed attention to its rating recommendation based on the above evidence. The PEB combined the left and right foot into a single unfitting condition and rated at 0% using an analogous code 5099-5002 (rheumatoid arthritis). The Board noted that the PEB stated in the summary that the condition was rated as analogous to periostitis for which the VASRD code is 5022. The use of the 5002 code was probably a typographical error. The VA rated the feet separately, but noted the bilateral surgery, post-operative scar, and plantar fasciitis. Each was rated at 10% and coded 5284 (other foot injuries) for the right foot and 5284-8523 (other foot injuries and deep peroneal nerve “incomplete paralysis,”) on the left.
The VA examination was approximately 11 months after separation and after surgery for a condition not documented prior to separation. The Board therefore assigned a higher probative value to the NARSUM examination for rating purposes. The Board first considered if each foot was separately unfitting. The CI was profiled for both feet, found medically unacceptable for both feet and the bilateral foot condition was found unfitting. The bone scans showed pathology in each foot. The Board determined that the evidence supported a finding that each foot was reasonably justified as separately unfitting. It then considered a rating for each foot. The 5022 code for periostitis affords a 10% rating for each foot IAW VASRD §4.40 and 4.59. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10%, each, coded 5022, 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 adjustment disorder with depression and panic disorder 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. No mental health condition was profiled. The examining psychiatrist determined that the mental health conditions met retention standards as did the MEB. Both were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that either condition 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 the either 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, the Board unanimously recommends a disability rating of 10% each, coded 5022, IAW VASRD §4.71a. In the matter of the contended mental health conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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
Left Foot Pain 5022 10%
Right Foot Pain 5022 10%
COMBINED (w/ BLF) 20%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140519, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXX
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, AR20150006308 (PD201402373)


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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