RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxxxxxxx	CASE:  PD-2013-01570
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090925

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Signal Support Systems Specialist) medically separated for bilateral hip pain and right knee pain.  The hips and knee conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Chronic bilateral hip pain due to residual of healed bilateral femoral neck stress fractures and left sacroiliac stress fracture” and “chronic right knee pain due to overuse,” were forwarded as “medically unacceptable” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic right hip pain,” “chronic left hip pain” and “chronic right knee pain” rated 10%, 0% and 0%, respectively.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI contends for a service rating for a spine condition.  His complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any condition outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20090828	VA* - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Hip Pain	5099-5003	10%	Acetabular Impingement Syndrome, Right Hip (Claimed as Right Hip Pain)	5252-5003	10%	20091110	
Chronic Left Hip Pain	5099-5003	0%	Acetabular Impingement Syndrome, Left Hip (Claimed as Left Hip Pain)	5252-5003	10%	20091110	
Chronic Right Knee Pain	5099-5003	0%	Right Knee Strain	5260-5003	10%	20091110	
Other x 0	Other x 0	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20100114 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  

Right Hip Condition:  The CI suffered an injury to his right hip during a training exercise in January 2009.  He developed a stress fracture in that hip and the pain became progressively worse.  Radiographic studies performed in February 2009 demonstrated findings consistent with stress fracture of the right femoral neck.  He participated in a physical training and rehabilitation program and was placed on convalescent leave for 27 days.  When the pain did not resolve, he was entered into the disability evaluation system.  The narrative summary (NARSUM) prepared 6 weeks prior to separation noted bilateral hip pain with the right hip being worse than the left.  The right hip pain flared up with prolonged sitting or standing and could last all day.  The pertinent physical exam findings documented by a physical therapist (PT) are summarized in the chart below.  At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported generalized muscle spasm mainly in the right leg and no flare-ups.  Plain film X-rays revealed the minor abnormality of changes consistent with hip impingement syndrome.  The pertinent physical exam findings are noted below.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Hip (Thigh) ROM (Degrees)	PT Exam ~3 Mo. Pre-Sep	VA C&P ~ 2 Mo. Post-Sep	
Flexion (125 Normal)	80	90	
Extension (20)	2	0	
External Rotation (45)	-	-	
Abduction (0-45)	10 (40 passive)	35	
Adduction (45)	-	-	
Comment	Pos. painful motion; No Deluca criteria	Pos. painful motion & crepitus; Normal gait	
§4.71a Rating	10%* (PEB 10%)	10%* (VA 10%)	
*IAW VASRD §4.59 Painful motion

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the right hip pain as unfitting and applied the analogous VASRD code 5099-5003, degenerative arthritis, and rated it 10%.  The VA applied the analogous code 5252, limitation of thigh flexion, with 5003 and also rated it 10%.  Both probative examinations documented non-compensable ROM measurements for the right hip with the presence of painful motion.  VASRD code 5003 allows for the application of a 10% rating for painful motion IAW VASRD 4.59.  There is no hip specific VASRD code that would allow for a greater disability rating.  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 right hip pain condition.

Left Hip Condition:  The CI suffered an injury to his right hip during a training exercise in January 2009.  Radiographic studies performed in February 2009 demonstrated findings consistent with stress fracture of the left femoral neck.  He participated in a physical training and rehabilitation program and was placed on convalescent leave for 27 days.  The NARSUM noted that the left hip pain was intermittent and occurred 4 out of 7 days.  The pertinent physical exam findings are summarized in the chart below.  The pain behavior with left hip abduction that the NARSUM examiner noted was during the physical therapist’s examination of passive hip abduction.  At the C&P exam, the CI reported generalized muscle spasm mainly in the right leg and no flare-ups.  Pertinent physical exam findings are noted below.  Plain film x-rays revealed the minor abnormality of changes consistent with hip impingement syndrome.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Hip (Thigh) ROM (Degrees)	PT Exam ~3 Mo. Pre-Sep	VA C&P ~ 2 Mo. Post-Sep	
Flexion (125 Normal)	106	100	
Extension (20)	2	0	
External Rotation (45)	-	-	
Abduction (0-45)	32 (37 passive)	35	
Adduction (45)	-	-	
Comment	No painful motion; No Deluca criteria	Pos. painful motion; No crepitus	
§4.71a Rating	0% (PEB 0%)	10%* (VA 10%)	
*IAW VASRD §4.59 Painful motion

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the left hip pain as unfitting and applied the analogous VASRD code 5099-5003 and rated it 0%.  The VA applied the analogous code 5252-5003 and rated it 10%.  Both probative examinations documented non-compensable ROM measurements for the left hip.  The pre-separation PT examination specifically did not note the presence of painful motion of the left hip.  As VASRD §4.59 was not applicable, the requirements for compensability under code 5003 were not met and there are no hip specific VASRD codes that can be appropriately applied in this case.  The Board considered VASRD §4.31, a no percent rating, which says:

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.

In keeping with the PDBR’s DODI 6060.44 charge to reassess the accuracy and fairness of the combined disability ratings adjudicated by PEB’s and to correct discrepancies and errors in such ratings, Board consensus was that the PEB’s adjudication for the left hip condition was accurate and fair with the pre-separation data the PEB used as the basis for their decision.  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 left hip pain condition.

Right Knee Condition:  The CI complained of right knee pain shortly after the injury to his right hip.  There was no injury of the right knee noted.  The NARSUM noted retro-patellar knee pain four out of seven days with flare-ups when he crouched.  These flare-ups could last up to 8 hours.  The pertinent physical exam findings are summarized in the chart below.  The NARSUM also documented that a bone scan revealed changes consistent with overuse of both knees while plain film X-rays were normal.  At the C&P, the CI reported constant right knee pain that required non-steroidal anti-inflammatory medications.  Plain film X-rays of the right knee were normal.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Knee ROM (Degrees)	PT Exam ~3 Mo. Pre-Sep	VA C&P ~ 2 Mo. Post-Sep	
Flexion (140 Normal)	137	80	
Extension (0 Normal)	-5	0	
Comment	Pos. painful motion; No instability or swelling	Pos. painful motion & crepitus	
§4.71a Rating	10%* (PEB 0%)	10%* (VA 10%)	
*IAW VASRD §4.59 Painful motion

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the right knee condition and applied the analogous VASRD code 5099-5003 and rated it 0%.  The VA applied the combination code of code 5260, limitation of leg flexion, - 5003 and rated it 10% citing “…for painful or limited motion of a major joint.”  Both exams documented painful motion of the right knee.  VASRD code 5003 allows for the application of a 10% rating for painful motion IAW VASRD 4.59.  There is no knee specific VASRD code that would allow for a greater disability 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 right knee pain condition.

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 chronic right hip pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic left hip pain condition and IAW VASRD §4.71a, the Board, by a majority vote, recommends no change in the PEB adjudication.  The single voter of dissent elected to submit the attached minority opinion.  In the matter of the chronic right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  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 Right Hip Pain	5099-5003	10%	
Chronic Right Knee Pain	5099-5003	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130923, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

MINORITY OPINION: Based on VASRD §4.3 (reasonable doubt), the minority finds the CI’s left hip condition at the time of separation supports a 10% rating versus the majority vote 0% recommendation (non-recharacterization).

The minority finds evidence for both right and left hip conditions are clinically similar as depicted in the following bilateral ROM chart:

Bilateral Hip (Thigh)
ROM (Degrees)	PT Exam ~3 Mo. Pre-Sep	VA C&P ~ 2 Mo. Post-Sep	
	Left	Right	Left	Right	
Flexion (125 Normal)	106	80	100	90	
Extension (20)	2	2	0	0	
External Rotation (45)	-	-	-	-	
Abduction (0-45)	32 (37 passive*)	10 (40 passive*)	35	35	
Adduction (45)	-	-	-	-	
Comment	Positive abduction passive painful motion; 
Flare ups with prolonged sitting or standing;
NARSUM diagnosed as:  chronic hip pain due to healed femoral neck stress fracture	Pos. active and passive abduction painful motion; 
Flare ups with prolonged sitting or standing;
NARSUM diagnosed as:  chronic hip pain due to healed femoral neck stress fracture	Pos. painful motion;
No crepitus;
Normal gait	Pos. painful motion;
Yes crepitus
Normal gait	
§4.71a Rating	10%* (PEB 0%)	10%* (PEB 0%)	10%* (VA 10%)	10%* (VA 10%)	
*IAW VASRD §4.59 (painful motion)

The PT examiner found positive passive-painful motion in both the left and right hip abduction measurements.  VASRD 4.59 (painful motion) states “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”  In this case both hips were damaged/fractured, found unfit for duty and the CI experienced painful motion.

Based on positive painful motion found in both the PT exam and VA examinations and VASRD §4.3 (reasonable doubt), the minority finds the CI’s left hip condition at the time of separation supports a 10% rating.

RECOMMENDATION:  The Board minority, therefore, recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic Right Hip Pain	5099-5003	10%	
Chronic Left Hip Pain	5099-5003	10%	
Chronic Right Knee Pain	5099-5003	10%	
COMBINED (w/ BLF)	30%	

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 XXXXXXXXXXXXXXXXXXXXX, AR20160000864 (PD201301570)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA