RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01818
BRANCH OF SERVICE:  Army	BOARD DATE:  20150325
SEPARATION DATE:  20050617

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Finance and Accounting) medically separated for right femur pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3/L3 profile and referred for a Medical Evaluation Board (MEB).  The “right femur fracture, pain slight, constant” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded eight other conditions for PEB adjudication.  The Informal PEB adjudicated “chronic pain, status post-operative fixation of fracture, right femur” as unfitting, rated 10% and #%, citing criteria of US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Smaller bone that have had surgery on have a higher rating than a broken femur then if they did not have any hardware in their body.  I have a rod from my hip to my knee.  This hinders me from doing many activities in my life.”

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 conditions 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/Naval 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:

Corr IPEB – Dated 20050504	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic pain, Status Post Operative Fixation of Fracture, Right Femur	5099-5003	10%	Chronic Right Hip Strain, Status Post Healed Right Femur Fracture	5299-5255	10%	20050916	
			Chondromalacia, Right Knee Status Post Healed Right Femur Fracture	5099-5014	10%	20050916	
Right Knee Pain	Not Unfitting					
Other x 7 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20060309 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Chronic pain, right femur.  In March 2004, the CI fractured his right femur (thigh bone) while playing soccer.  He had open reduction and internal fixation of the fracture.  A nail was placed into the femur.  There was delayed union, but ultimately his fracture healed without further surgery.  However, he continued to have pain in the right hip, and occasionally the knee.  Due to the chronic, persistent nature of his pain, an MEB was initiated.  The MEB orthopedic evaluation was on 10 February 2005.  The CI reported that he had not regained his full level of activity.  He usually walked without a limp, but after vigorous activity he would develop a limp.  His right hip pain was slight and constant.  The right knee pain will be addressed below.  On physical examination (PE) of the hip, there was no pain to palpation and the surgical scars were well healed.  Muscle strength was normal.  The right hip had full range-of-motion (ROM).  Internal and external rotation was described as: “symmetric.”

The CI was medically separated from service on 17 June 2005.  Three months later, in September 2005, he had a VA Compensation and Pension (C&P) exam.  He reported that his pain was aggravated by prolonged standing or walking, but especially by laying on his right side.  PE of the right hip showed no tenderness, deformity, swelling, or instability. There was no pain with hip motion. The ROM evaluations, which the Board weighed in arriving at its recommendation, are summarized below.

Right Hip ROM
(Degrees)	MEB (Ortho) ~4 mos. Pre-Sep
(20050210)	VA C&P ~3 mos. Post-Sep
(20050916)	
Flexion (125 Normal)	“full” ROM	120	
Extension (20)	“full” ROM	(not recorded)	
External Rotation (45)	“symmetric”	50	
Abduction (45)	“full” ROM	45	
Comment	No mention of painful motion	No pain with motion	

Board directed its attention to its rating recommendation based on the above evidence.  The Army PEB chose diagnostic code 5099-5003 (analogous to degenerative arthritis), and assigned a disability rating of 10%.  The Board determined that, based on the data from the physical exams noted above, the CI’s right hip had good ROM.  There was no objective evidence of deformity or joint instability.  However; IAW VASRD §4.40, when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  A 10% rating is warranted when there is satisfactory evidence of functional limitation due to pain.  There was no path to a higher rating since there was insufficient evidence of a seriously disabling right hip condition that would justify a higher rating.  Therefore, all Board members agreed that a disability rating of 10% was appropriate for the CI’s chronic pain of the right femur.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the chronic right femur pain.

Right knee pain.  At the February 2005 MEB orthopedic evaluation, the CI reported that his right knee pain was intermittent, and occurred primarily when climbing stairs.  On PE, there was some peripatellar tenderness, but normal patellar tracking.  Ligamentous exam of the knee was normal.  There was full range of motion (ROM) of the right knee.  At the September 2005 C&P exam, PE of the right knee revealed some crepitus, but no tenderness, deformity, swelling, or instability.  Tests for ligamentous laxity of the knee were negative.  The ROM evaluations which the Board weighed in arriving at its recommendation are summarized below.

Right Knee ROM
(Degrees)	MEB (Ortho) ~4 Mo. Pre-Sep
(20050210)	VA C&P ~3 Mo. Post-Sep
(20050916)	
Flexion (140 Normal)	“full” ROM	135	
Extension (0 Normal)	“full” ROM	0	

The Army PEB adjudicated the right knee pain as not unfitting.  The Board’s main charge with respect to this right knee condition is to assess the appropriateness of the PEB’s fitness adjudication.  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.  The right knee condition was thoroughly reviewed by the action officer and considered by the Board.

The Board determined that the right knee condition was not specifically profiled, nor was it judged to fail retention standards.  There was no indication from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation, and 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 right knee condition.  Therefore, no additional disability rating is 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 noted above, PEB reliance on the USAPDA pain policy was operant in this case.  The CI’s chronic pain condition was adjudicated independently of that policy by this Board.  In the matter of the chronic pain, status post fracture of right femur, and IAW VASRD §4.40 and §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right knee pain, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131022, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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, AR20150011067 (PD201301818)

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