RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301230
BRANCH OF SERVICE:  Army	BOARD DATE:  20140213
SEPARATION DATE:  20030505

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PVT/E-1 (95B/Military Police) medically separated for chronic pain left iliac (pelvis) area.  The CI initially injured his hip in Initial Entry Training in March 2001 while navigating the obstacle course.  He developed right hip pain and was treated conservatively.  He failed to improve and further evaluation noted a lesion on the left portion of his pelvis.  On 21 May 2002, he underwent a surgical procedure to remove the lesion.  Following the procedure he continued to experience significant pain and was treated by both orthopedics and the pain clinic.  The condition 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 L4 and referred for a Medical Evaluation Board (MEB).  The MEB forwarded the following conditions for Physical Evaluation Board (PEB) adjudication IAW AR 40-501: MEB condition #1 - “left pelvis low grade chondroid lesion, consistent w/enchondroma;” MEB condition #2 - “right greater trochanteric bursitis” and MEB condition #3 - “post-surgical neuritic pain.”  The MEB forwarded no other conditions to the PEB.  The Informal PEB (IPEB) determined the MEB condition #1 to be not unfitting and not ratable.  They combined MEB conditions #2 and #3 and adjudicated them as unfitting and rated at 20% citing verbiage consistent with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI appealed the findings of the IPEB but the IPEB findings were affirmed and he was separated.

CI CONTENTION:  “I have seizures that started from the time I was in the Army after a chondrosarcoma removal and it has been on-going til present day.  Mood Disorder.”

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 chronic left iliac pain condition is addressed below.  In addition, the CI additionally was notified by the Army that his case may be eligible for a review of the military disability evaluation of any mental health (MH) 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 MH diagnoses were changed during that process.  As a result, the Board has undertaken a review of the CI’s MH condition, which is also 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 20030305	VA - (4 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Left Iliac Area
Right Greater Trochanteric Bursitis	5099-5003	20%	Right Femoral Trochanter Bursitis	5010-5252	30%	20030918	
Left Pelvis Low Grade Chondroid Lesion Consistent w/Enchondroma	Not Unfitting	Enchondroma Left Iliac Crest (Hip)	5010-5252	40%	20030918	
No Additional MEB/PEB Entries	Other x10	20030918	
Combined:  20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20031003 (most proximate to date of separation [DOS])

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 VA Schedule for Rating Disabilities (VASRD), based on ratable severity at the time of separation.

The PEB combined the left hip neuritic post-op pain and right greater trochanteric bursitis conditions under a single disability rating, coded analogously to 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 separately 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 left hip neuritic post-op pain and right greater trochanteric bursitis conditions are presented separately; with attendant recommendations regarding separate unfitness and separate rating if indicated.

The Board first considered if the right greater trochanter bursitis condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting.  The well-established principle for fitness determinations is that they are performance-based.  The CI’s right hip injury occurred in March 2001, and despite a permanent L2 profile, he continued to perform his MOS duties.  The Board could not find evidence in the commander’s statement that documented any significant interference by the right greater trochanter bursitis condition with the performance of duties at the time of separation.  The commander’s statement identified a duty limiting profile and that profile did not mention the right hip.  The right hip condition was last profiled 13 months prior to separation and that temporary L3 profile expired after a month.  Additionally, the profile accomplished to initiate MEB proceedings did not mention the right hip pain.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the right greater trochanter bursitis condition was integral to the CI’s inability to perform his MOS duties and therefore was not separately unfitting; and, accordingly cannot recommend a separate rating for it.  After “unbundling,” the chronic pain left iliac area is the only separately unfitting condition and will be discussed below.

Chronic Pain Left Iliac Area.  The CI injured his right hip during a fall in basic training and a subsequent diagnosis of right trochanteric bursitis was made.  During evaluation of his right hip pain, a magnetic resonance imaging scan revealed an incidental finding of an enchondroma of the left iliac crest (side of pelvis), for which he had surgery.  The date of surgery on the left hip was February 2002, at which time curettage and bone graft was employed to the left iliac crest after the benign chondriod lesion was excised.  He had a vertical paraspinal incision on the left extending from the lower lumbar area down to the buttocks and was approximately 7 inches in length.  He continued to complain of right hip pain; however, his left hip pain was much more severe.  The left hip pain was described as a severe and constant with sharp and stabbing characteristics.  He used a narcotic patch, low dose antidepressant medication and other analgesics in an attempt to control the pain.  His mobility was severely restricted and he had pain with walking.  His gait had a limp on the right, as he tried to relieve pressure from his left hip, which was the more painful of the two.  He had difficulty dressing and managing his daily toilet activities, but he was able to do so by himself.  His recreational activities were virtually absent because of the constant discomfort.  Plain film X-rays revealed normal hip joints bilaterally.  The narrative summary (NARSUM) prepared approximately 3 months prior to separation noted continued management of his persistent left pelvis pain by the orthopedic department.  The pain was mainly located over the incision site and deep within the pelvis, but also radiated up and down his whole left side.  The pain was sharp and stabbing and was aggravated by prolonged sitting, standing, bending, walking and lifting.  It had failed treatment.  The physical exam revealed an antalgic gait and limp secondary to his pain (used a cane for stability) with normal strength, sensation and reflexes.  The incision was well healed and very tender to palpation.  Right hip range-of-motion (ROM) was forward flexion of 130 degrees (125 degrees normal), abduction of 45 degrees (normal) and normal internal rotation.  The examiner included the following concluding statement:

“In terms of his neuritic pain, this has demonstrated to be very resistant to any conservative management and presently requires extensive treatment through the pain clinic to include fentanyl patches, gabapentin, and Elavil.  In the future, he will probably have minimal improvement in this and will require extensive treatment through a pain clinic, but this would not allow him to return to active duty service and perform his duties as required as a military police officer.”

At the VA Compensation and Pension (C&P) exam performed 4 months after separation, the CI reported severe pain, weakness, intermittent swelling of the left and right hip areas, together with pain in his back.  For the enchondroma of the left hip, he had surgery and received pain medication in the form of fentanyl and Neurontin.  The pain was severe and constant, according to his history, and severely limited his functional activities.  His gait was impaired because of pain and he used a cane to minimize the pain and to assist his balance.  The physical exam revealed a slow, restricted gait with a limp.  There was no edema or effusion noted.  He was unable to bring his feet together because of instability.  Hip ROM was severely restricted, right hip flexion was 20 degrees and left hip flexion was 15 degrees.  Abduction of the right hip was 20 degrees and the left hip was 15 degrees.  Adduction of both hips was 0 degrees.  There were no additional studies ordered during that exam.  A later C&P examination documented his left hip ROM limited to 75 degrees due to pain and also contained the following excerpt:

“This gentleman has multiple subjective complaints which appear to this examiner to be somewhat exaggerated.  For example, he states that the pain in the left paravertebral region of the lower back radiates to the right shoulder.  This is difficult if not impossible to understand.  Furthermore, the patient complains of severe pain with passive and active motion of both the lower back and left hip, but with encouragement he can be made to move both areas to almost a normal range of motion.  Overall it is the opinion of this examiner that from a strictly objective point of view that there has been no significant change in this gentleman's left pelvic problem since his last evaluation of 2003.  Furthermore, it is my opinion that his multiple subjective complaints are really not well substantiated by objective x-ray and physical findings.”

The Board directs attention to its rating recommendation based on the above evidence.  As discussed above, the PEB combined the right hip bursitis and chronic left hip neuritis pain conditions and applied the analogous VASRD code of 5099-5003 and rated them at 20% with verbiage consistent with application of the USAPDA pain policy.  Also elaborated above was the Board’s finding that the “unbundled” right hip bursitis was “not unfitting” and therefore this rating recommendation will only address the unfitting chronic left hip neuritis.  The VA applied the analogous VASRD code of 5010-5252, limitation of thigh flexion, to both conditions and rated the right hip bursitis 30% and the left hip pain 40% based on the ROM measurements contained in the C&P examination.  The Board first deliberated on the most appropriate rating scheme for the left hip pain, utilization of a ROM based code verses a peripheral nerve code.  The ROM values reported by the VA examiner (4 months after separation) are significantly worse than those documented in the NARSUM (3 months prior to separation).  There is no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements.  While ROM limitations may have progressed over time, there is no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements.  Additionally, the ROM values documented in the C&P exam were so restrictive that the CI would not have been able to walk at all, sit-down or drive.  The Board members agree was that the pre-separation NARSUM exam was the most probative exam for basing its impairment rating at the time of separation.  That exam documented non-compensable ROM measurements with adequate evidence for painful motion IAW §4.95.  Evaluating pain limited motion under VASRD code 5003 allows for a rating of 10%.  All documentation agrees that the CI suffered from a post-operative neuritis of the left hip/thigh area as the primary condition causing his impairment.  Although the CI’s pattern of pain did not fit a discrete dermatome, the most likely peripheral nerve involved was the external cutaneous nerve of the left thigh.  If the more appropriate peripheral nerve code of 8629 (neuritis of the external cutaneous nerve of the thigh) is utilized, it too would result in a 10% rating for “severe to complete” and confer no benefit to the CI.  The Board notes that IAW DoDI 6040.44 the Board may not recommend a lower combined rating than that conferred by PEB.  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 chronic pain left iliac area condition.

Contended MH Condition.  The Board determined that it was appropriate that no MH diagnosis was identified by the MED or adjudicated by the PEB and therefore, no MH diagnoses was changed to the applicant’s possible disadvantage during the DES process.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board adjudged this to constitute a “de facto” determination by medical providers that no duty limiting MH condition existed.  The CI’s MEB history and physical exam forms (DD Form 2807 & 2808 respectively) each identify sleep disorder and anxiety as MH issues that required follow-up.  The DD Form 2807 completed by the CI attributed his sleep and anxiety to “seeing a suicide.”  Service treatment records document that the CI was diagnosed with an adjustment disorder 7 months prior to separation.  At that time, he was also being treated with an antidepressant medication to help with his sleep issues.  During that same time frame, the CI’s command referred him for a mental status examination due to misconduct and pending administrative discharge from Service.  That evaluation documented a normal mental status exam and contained the following statements:

“This soldier was command referred to Community Mental Health for a Mental Status Evaluation pursuant to a consideration for Chapter 14 administrative discharge from service.  There was no evidence of mental disorder which would affect judgment and reasoning or which would require disposition through medical channels.  The soldier denied any suicidal or homicidal ideas, intent, or plan.  The soldier is psychiatrically cleared for any administrative or judicial action deemed appropriate by command.”

Although sleep impairment, anxiety and adjustment disorder were mentioned, there was no indication that they caused any duty impairment.  The well-established principle for fitness determinations is that they are performance-based and the Board’s threshold for countering PEB not-unfit determination requires a preponderance of evidence.  The Board considered evidence related to “fitness” for an indication of any service related functional impairment caused by a MH condition prior to separation.  No MH condition was ever profiled or implicated by the commander’s statement.  The MEB physical exam annotated “normal” in the psychiatric section.  There were no psychiatric hospitalizations for any MH condition.  The VA provider made the following diagnoses and assessment:

Adjustment disorder with mixed features.  It is a transient condition that is expected to resolve.  The diagnosis of posttraumatic stress disorder does not meet the DSM-IV criteria for lack of any stressor involving exposure to life-threatening situation, with response involving intense fear helplessness, and horror.  Global Assessment of Functioning for adjust disorder with mixed features of 80 in current year, indicating slight impairment of function with minimal transient symptoms with expected full recovery.

After due deliberation in consideration of the preponderance of the evidence, the Board agrees that there is insufficient cause to recommend that an unfitting MH condition be added to the applicant’s DES record and, 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, PEB reliance on the USAPDA pain policy for rating the chronic pain left iliac area was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic pain left iliac area and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MH condition, the Board unanimously recommends it not be included in the CI’s DES record and therefore cannot recommend an additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Pain Left Iliac Area	5099-5003	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, 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, AR20140009337 (PD201301230)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA