RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX                                                                       CASE:  PD1300651
BRANCH OF SERVICE:  Army                                                                            BOARD DATE:  20140218
Separation Date:  20050110

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SSG/E-6 (11B, Infantry) medically separated for chronic right hip and left shoulder pain, along with a bilateral foot condition that was determined to have Existed Prior to Service (EPTS).  The CI reported first injuring his right hip and feet during physical training in 1993, injuries for which he was treated conservatively.  The CI injured his left shoulder during physical training in 2004 and initially received conservative treatment for this as well, but a rotator cuff tear necessitated surgical repair on 6 May 2004.  Despite treatment, his conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent U4/L4 profile and referred for a Medical Evaluation Board (MEB).  The three conditions, characterized as “right hip pain secondary to snapping hip syndrome”, “plantar fasciitis of the feet bilaterally” and “left shoulder pain status post left shoulder rotator cuff reconstruction”, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501; no other conditions were forwarded to the PEB.  The informal PEB adjudicated “chronic pain right hip and left shoulder” and “bilateral plantar fasciitis” as unfitting, rated 10% and 0%, respectively (IAW the US Army Physical Disability Agency (USAPDA) pain policy).  The CI appealed to the Formal PEB (FPEB) and requested counsel.  The FPEB adjudicated “chronic pain right hip and left shoulder” as unfitting, rated at 10%, and the “bilateral plantar fasciitis” as unfitting but determined to have Existed Prior to Service (EPTS).  The CI first requested an extension of his active duty period, which was granted; he then submitted a rebuttal to the FPEB, indicating request to continue on active duty and attempt rehabilitation with a goal of being found fit for duty.  This rebuttal was answered by the USAPDA, which replied “the recommendations of the PEB were just and in conformance with the provisions of law and current regulations.”  The request to continue on active duty was denied and the CI was medically separated with the rating adjudicated by the FPEB.  Shortly after separation, the CI submitted a letter to his United States Senator indicating he had not received enough disability compensation from the Service; USAPDA also replied to this congressional inquiry, indicating the FPEB “appropriately rated [the CI’s] condition”.

CI CONTENTION:  “Reason for change, member was rated at 70% by VA prior to mobilization and was stop lossed at Fort Sill Jan 2003.  Member was not Med boarded 24 JUL 2004 at which his injuries and mental health worsened two surgeries after discharge in Jan 2005.  Member had over 16 combined years of service and should have qualified to remain on active duty until retirement and/or to have corrective surgeries to L shoulder and R hip.  Further retained due to an increase in mental health issues.  The lack of mental health treatment and medication contributed to members inability to maintain a secure fulltime employment as well as proper medical insurance for sustained pain management and mental health program placement or treatment place.  In fact Wounded Warrior Act was not available to member at time of medical discharge.  Oversight of this provision or Act placed member in an unjust an untimely discharge without proper evaluation(s) or treatment.” 

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.  In addition, the CI was notified by the Army that his case may eligible for review of the military disability evaluation of any mental health condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose mental health diagnoses were changed or eliminated during that process.  Since the CI responded to this mailing, it is presumed that he has elected review by the PDBR for the mental health condition although he did not specifically contend for it on the DD Form 294.  In accordance with Secretary of Defense directive for a comprehensive review of mental health diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting mental health diagnoses in accordance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.129 and §4.130.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The Service rating for the unfitting right hip, left shoulder and bilateral feet conditions and any mental health 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 consideration by the Service Board for Correction of Military Records.

RATING COMPARISON:

Service FPEB – Dated 20041005	VA - (3 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Right Hip and Left Shoulder	5099-5003	10%	Right Hip Tendonitis and Degenerative Changes	5299-5255	10%	20050422	
			Left Rotator Cuff Tendonitis	5203	10%	20050422	
Bilateral Plantar Fasciitis	5399-5310	--%	Plantar Fasciitis, Right Foot	5284-5276	10%	20050422	
			Plantar Fasciitis, Left Foot	5284-5276	10%	20050422	
No MEB/PEB Entry	Depression Mood Disorder	9435	50%*	20050422	
No Additional MEB/PEB Entries	Other x13	20050422	
Combined:  10%	Combined:  90%	
Derived from VA Rating Decision (VARD) dated 20050616.
*Rated 10% from 19990817-20030127, discontinued when CI started active duty.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that his Service disability disposition was unfair due to his combined 16 years of service.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations.  These issues may be addressed by the Board for the Correction of Military Records and/or the United States judiciary system.

The PEB rated Chronic Pain Right Hip and Left Shoulder under the single analogous 5003 (degenerative arthritis) code.  This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation.  The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a.  If the Board determines that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was reasonably justified as unfitting in and of itself.  

Chronic Pain Right Hip Condition.  The Board first considered whether the Chronic Pain Right Hip condition, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above.  The CI was on a permanent profile with multiple limitations resulting from the Chronic Pain Right Hip alone.  The Commander’s statement documented the right hip pain interfered with the CI’s ability to walk, run, crawl and climb over varying terrain for a distance up to 25 miles as required in his MOS.  The CI was given a U4/L4 Profile for right hip pain, left shoulder pain and bilateral foot pain.  Board members agreed the Chronic Pain Right Hip condition was reasonably justified as separately unfitting as it rendered the CI incapable of continued service within his MOS, and accordingly this condition merits a separate Service rating.

The CI injured his right hip when he stepped in a hole and fell while running during Physical Training in July 1993.  He was seen by physical therapy (PT) for evaluation with mild tenderness of the sacroiliac (SI) joint, although right hip x-rays were normal.  The CI was diagnosed with a right hip snapping of a hip tendon and underwent steroid injection into the right hip.  He was followed by Orthopedics throughout 1994 for ongoing right snapping hip pain with activity.  PT noted the CI had chronic right hip pain with popping and indicated he was a candidate for a surgical procedure (iliopsoas tendon release), but the CI decided against the procedure due to associated risk.  On physical exam antalgic gait was noted, with cane assisted ambulation and tenderness over the sacro-iliac (SI) joint.  The right hip had full flexion and extension with pain on extension (attributed to popping of the hip).  The CI continued to be seen by Orthopedics, PT and Primary Care throughout 1997, 1998 and 1999 for right snapping hip syndrome condition, though available evidence revealed only normal x-rays for that time period.  As mentioned above, the CI received a permanent U4/L4 Profile for pain in his right hip, left shoulder and both feet.  The Narrative Summary (NARSUM) exam (five months prior to separation) noted the CI was unable to perform basic soldiering activities and experienced increased pain with going up stairs.  Recorded ranges of motion (ROM) were flexion 120° (normal would be 125) with pain, extension 10° (normal 20), adduction 20° (normal 45), abduction 20° (normal 45) internal rotation 15° (normal 40) and external rotation 30° (normal 45).  The examiner rated the hip pain according to the American Medical Association (AMA) pain scale as slight and constant.  A civilian sports medicine physician (four months prior to separation) documented the CI’s complaints of pain in the hip and thigh that increased with activity; he also recorded decreased sensation and morning hip stiffness along with popping and snapping, but no locking.  The physical exam findings were normal hip flexion and abduction, with internal and external rotation of 30 degrees.  Passive ROM elicited a pop at the hip joint; strength, reflexes and sensation were normal.  Magnetic Resonance Imaging with arthrogram reportedly revealed a labral tear of the right hip (as recorded in the exam; the primary document was not present in the file for review) and there was a documented leg length discrepancy with the right shorter than the left.  The examiner diagnosed right hip labral tear, hip flexion contracture, adductor tendonitis, and leg length discrepancy.  The VARD (16 June 2005) referenced a VA Compensation and Pension (C&P) exam (3½ months after separation) which documented continued limited right hip motion and subjective complaints of pain (the C&P exam was also not available in the evidence file).  No ROM’s were noted in the VARD from this exam.  Four months after separation, a right hip arthroscopic procedure was performed as well as partial labral tendon and Ilio-psoas releases.

The Board directs attention to its rating recommendation based on the above evidence.  As described above, the PEB bundled the Chronic Pain Right Hip and Left Shoulder conditions in its rating.  The PEB coded the bundled Chronic Pain Right Hip condition as 5099-5003, degenerative arthritis, and applied the USAPDA pain policy for its 10% rating.  The VA analogously coded the Right Hip Tendonitis and Degenerative changes as 5299-5255, impairment of the Femur, rated 10%, which is the percentage for “slight knee or hip disability.”  All exams proximate to separation documented non-compensable ROM measurements with painful motion, which necessitates application of §4.59 (painful motion) to achieve the minimal compensable rating of 10%.  The Board considered applying code 5255 (impairment of the femur with slight hip disability), as the VA did, but that would not confer any benefit to the CI.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the Chronic Pain Right Hip condition.

Left Shoulder Condition.  The Board first considered whether the left shoulder condition, having been de-coupled from the combined PEB adjudication, was independently unfitting.  The CI was on a permanent profile with multiple limitations resulting from the left shoulder condition alone.  The CI’s left shoulder was injured and he subsequently underwent a surgical procedure that failed to relieve his pain.  The left shoulder pain was referenced in the Commander’s Statement as interfering with the CI’s duties (occasionally raising and carrying 160 pounds on his back, crawling, digging, lifting and shoveling 21 pound scoops of dirt in a bent, stooped or kneeling position), thus preventing the CI from execution of this MOS.  The CI was given a U4/L4 Profile for the right hip pain, left shoulder pain and bilateral feet pain.  Board members agreed the Chronic Pain Left Shoulder condition was reasonably justified as separately unfitting as it rendered the CI incapable of continued service within his MOS, and accordingly this condition merits a separate Service rating.

The CI injured his left shoulder during physical training in March 2004.  He was evaluated and treated by PT but failed to respond to conservative treatment.  He underwent an arthroscopic decompression procedure in June 2004.  His shoulder pain continued as he was seen for follow-up from the left shoulder procedure.  The examiner noted tenderness on palpation of the shoulder, mild pain in active motion, and mild pain elicited during an impingement test.  The NARSUM exam (five months before separation) noted the CI was unable to do push-ups and had pain lifting over 45 pounds, limited lifting capability and increased pain with carrying a crew weapon.  Measured ROM were flexion 140° (normal 180), abduction 135° (normal 180), and external & internal rotation each 40° (normal 45).  The examiner rated the pain according to the AMA pain scale as slight and constant.  The MEB exam (also five months prior to separation) documented discomfort on abduction of the left upper extremity with no atrophy, good muscle strength and no neurological deficits.  The VARD (16 June 2005) referenced the same missing VA C&P exam (from 3½ months after separation) which reported continued subjective complaints of pain and crepitus.  No ROM were noted in the VARD from that exam.

The Board directs attention to its rating recommendation based on the above evidence.  As described above, the PEB bundled the Chronic Pain Right Hip and Left Shoulder conditions in its rating.  The PEB coded the bundled Chronic Pain Left Shoulder condition analogously as 5099-5003, degenerative arthritis, and applied the USAPDA pain policy for its 10% rating.  The VA coded the Left Rotator Cuff Tendonitis as 5203 (impairment of the clavicle or scapula) and rated it 10%, which is the coding for with “malunion of” the clavicle or scapula in the VASRD.  The NARSUM exam documents non-compensable ROM measurements.  All exams proximate to separation document painful motion IAW §4.59.  VASRD §4.71 specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion”.  The Board considered other reasonable rating schemes, but no reasonable rating scheme would achieve a higher compensable rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the Chronic Pain Left Shoulder condition.

Bilateral Plantar Fasciitis Condition:  The CI complained of left heel pain after he bumped his left foot on the stairs and was diagnosed with a left ankle sprain.  He was seen at the local VA Medical Center in Primary Care and reported that he worked on concrete and had a lot of pain in his feet.  There were three entries in the STRs for foot pain, one each in 1984, 1996 and 2000.  There was also a Report of Medical Examination, Standard Form 88 (SF-88) prepared in July 1992, which documented mild asymptomatic bilateral pes planus.  The bilateral foot pain was only profiled in preparation for entry into the DES process when he was given a permanent U4/L4 Profile for pain in the right hip, left shoulder and both feet.  The Commander’s Statement noted that the bilateral foot plantar fasciitis interfered with performance in the MOS as he was required to frequently walk, run and climb over varying terrain for a distance of up to 25 miles.  The NARSUM examiner noted that the CI had bilateral foot pain despite orthotics and was diagnosed with plantar fasciitis.  The physical exam findings were minimal tenderness to palpation in the plantar surface bilaterally, a normal gait, and no edema or erythema.  The examiner designated the bilateral foot pain according to the AMA pain scale as “slight/constant.”  The VARD (16 June 2005) referenced a VA C&P exam (five months after separation) that documented continued complaints of pain and physical findings of both feet consistent with slight pes planus (flat feet).  No ROM measurements were noted from that C&P exam.

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB adjudicated the Bilateral Plantar Fasciitis by applying the analogous VASRD rating code 5399-5310, Group X function, and did not rate the condition, specifying it EPTS.  The VA separately coded the Right and Left foot Plantar Fasciitis as 5284-5276, acquired flatfoot (pes planus), and rated each at 10%, consistent with “moderate”, disregarding the option to rate it as a bilateral condition under the “moderate” rating guidelines.  The diagnosis adjudicated by the PEB was plantar fasciitis and there was not a preponderance of evidence to recommend a diagnostic change to pes planus.  The VASRD code most appropriate for rating plantar fasciitis is the 5310 code, which was applied by the PEB.  The NARSUM documented minimal foot pain with palpation, a normal gait and the CI was able to pass his fitness test within seven months of separation.  Board members agreed the CI’s symptoms were most consistent with the “slight”, 0%, rating under 5310.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded there was insufficient cause to recommend a change in the PEB adjudication for the bilateral plantar fasciitis condition.

Contended MH Condition.  There was no MH condition identified by the MEB or adjudicated by the PEB.  The Board’s first charge with respect to these conditions is an assessment of CI’s MH diagnosis and an assessment of the CI’s fitness for duty with respect to the MH condition.  The Board’s threshold for the addition of an unfitting MH disorder to the CI’s DES record 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.  The CI was seen by MH providers for depression four times in July 1996, once in July 1998, intermittently in 1999, 2000, 2001 and 2002.  He was also seen twice in 2004 and once in 2005 for the same condition.  Throughout these encounters, he was treated with anti-depressant medications, but there were no hospitalizations for any mental health condition.  Every annual performance evaluation was in the “successful” and “superior” range with no reference to any mental health condition interfering with the CI’s duty performance.  The Depression condition was not profiled, nor was it implicated in the Commander’s Statement.  This condition was reviewed by the Action Officer and considered by the Board, but there was no indication from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the “fair and equitable” standard, the Board concluded that there was insufficient cause to recommend an unfitting MH condition be added to the CI’s DES record, therefore, no additional disability rating can be 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.  As discussed above, the PEB bundled the Chronic Pain Right Hip and Left Shoulder conditions and relied on the USAPDA pain policy for rating.  Those conditions were adjudicated independent of that policy by the Board.  In the matter of the Chronic Pain Right Hip condition, the Board unanimously agreed that it was separately unfitting and recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the Chronic Pain Left Shoulder condition, the Board unanimously agreed that it was separately unfitting and recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the Bilateral Plantar Fasciitis condition and IAW VASRD §4.71a, the Board unanimously recommends a change from EPTS with no rating to unfit, rated 0%.  In the matter of the contended Depression condition, the Board unanimously recommends no additional disability rating can be recommended.  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	
Chronic Pain Right Hip	5099-5003	10%	
Chronic Left Shoulder 	5099-5003	10%	
Bilateral Plantar Fasciitis	5310	0%	
COMBINED(w/BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130509, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

                                                                                            

SFMR-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 XXXXXXXXXXXXXXXXXX, AR20140007578 (PD201300651)

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