MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 January 2002
         DOCKET NUMBER: AR2001062946

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his separation for disability be changed to a medical retirement under the VA Schedule of Rating Disabilities (VASRD) code 5276, flatfeet, bilateral and severe with a 30 percent disability rating and that he receive back retirement pay from 12 December 2000.

APPLICANT STATES: The applicant defers to counsel.

COUNSEL CONTENDS: That although the applicant concurred with the findings of the physical evaluation board (PEB), it was not an informed concurrence. He was not provided with information regarding the manner in which the informal PEB reached its decision nor were alternative resolutions explained. The medical evaluation board (MEB) appropriately identified the physical issues but the informal PEB utilized an inappropriate VASRD code in reaching its result. The informal PEB employed VASRD code 5310 by analogy whereas their actual focus should have been on VASRD code 5276. The failure to use code 5276 harmed the applicant and was contrary to the well-established principle that equivocation is resolved in favor of the applicant. The applicant had evidence of bilateral marked deformity, on manipulation and use, swelling on use, along with flatfeet. He should have been given a 30 percent rating under VASRD code 5276. His permanent profile prevented him from standing more than 15 minutes. He underwent unsuccessful surgery on his left foot and planned surgery on his right foot was abandoned. The informal PEB’s use of code 5310 ignored the elements described in code 5276 and relied solely upon muscle involvement, which, although existing, do not accurately define the applicant’s condition because failed musculature is not the only circumstance associated with his disability. Further, the degenerative arthritic condition in the ankles bilaterally is also a consequence of the feet issues and should not be treated as existing prior to service (EPTS) but rather as an aggravated consequence of his flat feet. It is ridiculous to say that the degenerative joint disease in the ankles is unrelated to the debility of the feet.

EVIDENCE OF RECORD: The applicant's military records are not available. Information contained herein was obtained from alternate sources.

It appears that after having had 5 years of prior active service, the applicant enlisted in the Regular Army on 6 June 1995. He was awarded military occupational specialty 91C (Practical Nurse).

In July 2000, the applicant was given a permanent L3 physical profile for chronic plantar fasciitis. Assignment limitations included no prolonged standing greater than 15 minutes per hour.

By memorandum dated 28 August 2000, the applicant’s commander indicated the applicant was physically capable of reasonably performing his clinical duties as a 91C despite his bilateral severe flat feet and plantar fasciitis but his condition would likely preclude him from performing various critical field tasks, such as conducting a road march. His conditions prevented him from leading physical training or passing the Army Physical Fitness Test and adversely impacted unit readiness since he could not perform his duties in a combat environment.

In September 2000, the applicant was evaluated by an MEB. The Narrative Summary listed the diagnoses as chronic plantar fasciitis (inflammation of the fascia (similar to a tendon) on the sole of the foot) bilateral feet, pain slight and occasional, EPTS; pes planovalgus (flatfeet) bilateral, EPTS; and ankle, degenerative joint disease bilateral, EPTS. It noted he first sought treatment for a complaint of foot pain in 1996. A physical examination revealed his feet were tender to palpation of the plantar medial aspect of the calcaneus (heel bone) and with passive and active range of motion. He was seen again in April 1998 with arch pain. X-rays revealed a calcaneal spur on the left foot. A bone scan done later that year found there was a moderate focal increase activity in the right greater and left plantar calcaneus at the insertion site of the plantar fascia. There were no other focal abnormalities of either the ankle or the foot at that time. The impression was bilateral plantar fasciitis more pronounced on the right than the left. He continued to have pain in his feet bilateral secondary to plantar fasciitis. An examination by Podiatry on 17 May 2000 (sic, possibly a typographical error that should have read 17 May 1999) revealed results consistent with the plantar fasciitis. He was seen again on 28 February 2000 and the examination was consistent again with plantar fasciitis with tenderness in the plantar calcaneal medial aspect bilateral and at the insertion of the Achilles tendon bilateral. There was no edema (swelling) or erythema (redness of the skin). He was seen on 17 April 2000 with consistent discomfort in his plantar fascia. In July 2000 he was scheduled for elective plantar fascial release, partial on the left foot. He tolerated surgery well but in August 2000 he was continuing to have problems and symptoms. He had a chronic history of plantar fasciitis secondary to his flexible pes planus bilateral. The severity of his discomfort was slight, frequency occasional.

The Medical Evaluation Board Proceedings, DA Form 3947, dated 28 September 2000 listed the applicant’s diagnoses as chronic plantar fasciitis bilateral feet, pain slight and occasional, incurred while entitled to base pay; pes planovalgus bilateral, EPTS; and ankle, degenerative joint disease, bilateral, incurred while entitled to base pay. He was referred to a PEB. On 19 October 2000, the applicant agreed with the MEB’s findings and recommendation.

On 24 October 2000, an informal PEB found the applicant unfit for duty by reason of chronic bilateral plantar fasciitis due to bilateral pes planovalgus (diagnoses one and two) rated as moderate in accordance with U. S. Army Physical Disability Agency (USAPDA) Policy/Guidance Memorandum #12, Analogous Ratings, dated 6 December 1999 under VASRD code 5310 with a disability rating of 20 percent. The third diagnosis of degenerative joint disease in both ankles was found to be not unfitting. He was recommended for separation with severance pay with a 20 percent disability rating. On 1 November 2000, the applicant concurred in the findings and recommendation and waived a formal hearing. He was discharged by reason of a physical disability on 17 December 2000 in the rank of Sergeant, E-5 with severance pay after completing 10 years, 11 months, and 12 days of creditable active service.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. The fact that a soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. After a soldier has been enlisted, the soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the soldier’s acceptance for military service that have remained essentially the same in degree since acceptance and have not interfered with the soldier’s performance of effective military service. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects will be considered in arriving at the rated degree of incapacity. Any non-ratable defects or conditions will be listed in item 8 of the Physical Evaluation Board (PEB) Proceedings, DA Form 199, but will be annotated as non-ratable.

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.

The VASRD gives code 5310, intrinsic muscles of the foot (including ligaments and tendons) a 30 percent rating when severe; a 20 percent rating when moderately severe; a 10 percent rating when moderate; and a 0 percent rating when slight. The USAPDA Policy/Guidance Memorandum #12 gives a 20 percent rating when moderate.
The VASRD gives code 5276, flatfoot, acquired, a 50 percent rating when bilateral and pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, a marked inward displacement and severe spasm of the tendo achillis on manipulation; a 30 percent rating when bilateral and severe with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 10 percent rating when moderate; and a 0 percent rating when mild.

Title 10, United States Code, section 1203 provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant has provided no evidence to show he did not give his informed concurrence with the informal PEB’s findings. Not only did the applicant hold a medical field military occupational specialty, he was a noncommissioned officer with over 10 years of active service. He should have known what his medical conditions were, what his medical treatments over the years were for, and what he was signing. The DA Form 199 was very clear – he did not have to concur with the findings and recommendation. If he did not want to appear before a formal PEB, which was listed as one of his options, he still could have appealed the findings. He elected not to do so.

3. The Board notes that the Narrative Summary indicated that all the applicant’s conditions were EPTS; however, the DA Form 3947 listed only his flatfeet condition as EPTS. His diagnoses of chronic plantar fasciitis bilateral feet and degenerative joint disease of both ankles were listed as having been incurred while entitled to base pay. The DA Form 199 noted that his disability existed prior to service but was compensable in accordance with Title 10, U. S. Code.

4. The applicant did not challenge the determination that his flatfeet were EPTS. There is no indication in the MEB’s Narrative Summary that the applicant’s flatfeet caused him any problems. Everything indicates that he had been treated over the years for plantar fasciitis, a tendon problem. His physical profile was a result of his plantar fasciitis. The surgery was for plantar fascial release. The plantar fasciitis may have been the result of his flatfeet; however, the flatfeet themselves were not a problem. Furthermore, the applicant’s commander indicated that the applicant was physically capable of reasonably performing his clinical duties as a 91C despite his bilateral severe flat feet and plantar fasciitis but his condition would likely preclude him from performing various critical field tasks. Since there was no evidence to show that his flatfeet, an EPTS condition, interfered with his performance of effective military service, the condition was non-ratable.

5. There is no evidence to show that the applicant was ever treated for an ankle condition. The PEB did not indicate that his degenerative joint disease in the ankles was unrelated to the debility of his feet; it found that his ankle condition was not an unfitting condition.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jlp___ __cjp___ __kwl___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001062946
SUFFIX
RECON
DATE BOARDED	20020117
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.