RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01854
BRANCH OF SERVICE:  Army	BOARD DATE:  20150107
SEPARATION DATE:  20051119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantryman) medically separated for chronic pain in his back, hips, knees and right ankle.  The CI previously served in the Army and was medically separated in March 2000 for knee (bilateral retro-patellar pain syndrome) problems.  Until he re-entered Service in July 2002, he received a VA disability (combined 40%) for a left ankle sprain, as well as, right and left knee cap pain.  His bilateral hip, neck, and low back pain (LBP) were determined to be not service-connected.  After returning to Service, the CI again identified hip and knee (left and right) pain, as well as, right ankle pain, in July 2003.  The back and joint pain conditions 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The back, hips, knees, and right ankle conditions, characterized as “degenerative disc disease (DDD) of the lumbar sacral spine,” “bilateral internal snapping of both hips,” “bilateral patellofemoral arthrosis” and “right ankle pain with component of instability,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain, due to lumbar degenerative disc disease, without neurologic abnormality,” and “chronic pain, bilateral hips, knees and right ankle” as unfitting, rated 10% and 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI appealed to the Formal PEB (FPEB), which affirmed the PEB findings and ratings.  The CI was medically separated.

CI CONTENTION:  “had to have surgery on hip and on Both hands + ankle.  Was diagnosed with combat PTSD.  I am 100% through the state and VA.” 

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 ratings for the unfitting chronic back pain; and chronic pain of bilateral hips, knees and right ankle conditions are addressed below.  The requested hand, left ankle, and posttraumatic stress disorder (PTSD) conditions were not identified by the MEB or PEB, and thus are not 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 FPEB – Dated 20051018	VA - (10.5 Mos. /Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	DDD, Lumbar Spine	5242	20%	20061004	
Chronic Pain, Bilateral Hips, Knees and Right Ankle	5099-5003	10%	Left Hip	5253	10%	20061004	
			Right Hip	5253	10%	20061004	
			Left Knee	5024-5260	0%*	20061004	
			Right Knee	5024-5260	10%	20061004	
			Right Ankle	5271	10%	20061004	
Other x 0 (Not in Scope)	Other x7	20061004	
Combined:  20%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20061215 (most proximate to date of separation [DOS])
VARD dated 20061017 was closest to DOS, however bilateral hip and right ankle conditions were deferred.
*Note: Left knee was given 10% after initial separation; however, it was reduced to 0% effective the second DOS.

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Lumbar Spine Condition.  The CI reported that he developed LBP in August 2003 without any specific injury noted.  He had been treated conservatively without a reduction in his pain.  Orthopedic evaluation determined that he was not a candidate for injections or surgery.  Plain film X-rays revealed a decreased disc space at L5-S1 and a magnetic resonance imaging (MRI) study revealed a small central herniated disc at L5-S1 with disc desiccation.  The MEB physical exam performed 5 months prior to separation noted a normal spine exam and did not identify the low back condition in the “summary of defects” section.  The CI was evaluated, 3 months prior to separation, in the Physical Exam Section (PES) of his treatment facility whose findings are documented in the chart below.  The narrative summary (NARSUM) accomplished 2 months prior to separation noted that his pain was constant, occurred at night, and did not radiate.  The pertinent physical exam findings are summarized in the chart below.  At the VA Compensation and Pension (C&P) exam performed 11 months after separation, the CI related his back pain was due to wearing a heavy flak vest while in Iraq.  Later he said that his back and hip pain actually began in 1995 when he was jumping out of airplanes as a paratrooper.  He logged 35 jumps and had no specific injuries.  He did some yard work and outdoor work on occasion which included using a chain saw in the past year.  At home, he lifted forty pound bags of wood pellets for the wood stove, and that aggravated his back considerably.  He did not complain of stiffness or weakness in the back itself.  The pertinent physical exam findings are summarized 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 below.

Thoracolumbar ROM (Degrees)	PES 2.5 Mo. Pre-Sep	NARSUM 2 Mo. Pre-Sep	VA C&P 10.5 Mo. Post-Sep	
Flexion (90 Normal)	90	30	80 (50⁰ Deluca)	
Combined (240)	240	130	230	
Comment	Pos. painful motion & tenderness to palpation; No spasm	Pos. painful motion; Normal strength, reflexes & sensation	Pos. painful motion, tenderness to palpation & spasm; Neg. radicular symptoms; Pos. Deluca criteria	
§4.71a Rating	10%	40% (FPEB 10%)	20% (VA 20%)	

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB applied the analogous VASRD code 5299-5242 (degenerative arthritis of the spine) and rated it 10% citing “thoracolumbar range of motion limited by pain, with localized tenderness.”  The VA also applied code 5242 but rated it 20% citing. “…for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees before movement becomes painful.”  The Board noted that the measured ROM on the C&P exam was 80 degrees with pain beginning at 45 degrees and with Deluca criteria “likely to be additionally limited to 50⁰…” noted on C&P exam which is consistent with the VA’s 20% rating.  The Board reviewed the entire file in an effort to reconcile the differing ROM measurements documented on the three exams noted above.  After considering all evidence (service treatment records [STR], X-ray and MRI findings), Board consensus was that the ROM measurements documented in the NARSUM were not representative of the CI’s true impairment and therefore, assigned the highest probative value to the pre-separation PES exam, performed 2 weeks earlier than the NARSUM, which more appropriately reflected the CI’s impairment at the time of separation.  The C&P exam was after separation, more remote from separation, and documented the presence of muscle spasm which likely accounted for a temporary decrease in the ROM measurements.  The PES ROM measurements were consistent with the 10% evaluation as assigned by the FPEB.  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 FPEB adjudication for the LBP condition.

Chronic Pain, Bilateral Hips, Knees and Right Ankle.  The FPEB combined the chronic pain, bilateral hips, knees and right ankle 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 was therefore directed at determining if the FPEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the chronic pain, bilateral hips, knees and right ankle conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Bilateral Hip Pain  In the evidence present for review, the first mention of hip pain is in November 2003, when it was noted along with bilateral knee, shoulder and right ankle pain.  There was no evidence of any injury to either hip.  The right hip was separately mentioned as a source of pain, while the left hip was never separately mentioned.  The bilateral hip pain condition was profiled only upon entry into the Disability Evaluation System (DES).  The bilateral hip condition was not noted in the commander’s statement as causing any duty limitation.  Plain film X-rays of both hips were normal and a bone scan performed 11 months prior to separation was also normal.  The CI was diagnosed with “snapping hip syndrome” of the right hip 5 months prior to separation.  The MEB physical exam performed 5 months prior to separation noted tenderness to external rotation of the right hip joint, otherwise full ROM of both hips.  The NARSUM accomplished 2 months prior to separation noted that in 2003 the CI noticed snapping of both hips when he stepped out of a military vehicle.  His hip pain was constant, occurred with walking and getting in and out of chairs.  The pertinent physical exam findings are summarized below.  At the C&P exam performed 11 months after separation, the CI stated he first developed pain in 2003 with no pain prior to that time.  He felt pain deep in the joint and also over the anterior hip in the groin area.  Pain was an aching sometimes sharp 3/10 to 5/10 in intensity and was constantly present popping on external rotation.  He had been diagnosed with "hip snapping syndrome" and had no specific injury to his hips.  The physical exam revealed a wide based gait with evidence of stiffness on walking but no specific limp.  He was using a cane because of hip and low back pain.  The remainder of the exam is summarized below.

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.

Hip (Thigh) ROM (Degrees)	PES 2.5 Mos. Pre-Sep	NARSUM 2 Mos. Pre-Sep	VA C&P 10.5 Mos. Post-Sep	
	Left	Right	Left	Right	Left	Right	
Flexion (125 Normal)	125	125	60	80	120	120	
Extension (20)	-	-	-	-	-	-	
External Rotation (45)	-	-	40	20	45	45	
Abduction (0-45)	45	45	20	20	40	40	
Adduction (45)	-	-	-	-	-	-	
Comment	No crepitus, snapping, or popping is appreciated on flexion, abduction, or rotation of either hip	Pos. painful motion & snapping bilaterally	Pos. Painful motion & tenderness to palpation	
§4.71a Rating	0%	0%	10%*	10%*	10%*	10%*	
*IAW VASRD §4.59, Painful motion

The Board directed attention to its rating recommendation based on the above evidence.  The evidence makes clear that the right hip was associated with more disability than the left one in this case.  The disparity was such that the question is raised of whether the left hip was reasonably justified as separately unfitting.  Neither hip was noted in the commander’s statement as causing duty limitations.  Both hips were normal on X-ray and bone scan radiographic studies.  The STRs never separately mentions the left hip, while the CI was specifically diagnosed with snapping hip syndrome of the right hip.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the left hip was integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a separate rating for it.  The Board considered the entire STR in addition to the three exams noted above.  Two of the three exams documented painful motion of the right hip which was also supported by the STR.  Those exams documented non-compensable ROM measurements of the right hip with evidence of painful motion.  Rating under VASRD code 5003 allows for a 10% rating with adequate documentation of painful motion under §4.59.  The Board members agree that the better coding option would be 5253 (impairment of the thigh) and rated at 10%; however, that option would not be of 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 right hip pain condition.

Bilateral Knee Pain  During the CI’s first period of service, he developed bilateral knee pain, underwent surgery on his left knee, and was medically separated for bilateral knee pain in 1999.  He was found fit for service and entered his second period of service, 3 years later, with his history of bilateral knee pain.  The STRs do not document any new injury or complaint of knee pain.  The bilateral knee condition was first noted 3 months prior to separation when the CI was being evaluated at entry into the DES.  The bilateral knee condition was not profiled prior to DES entry.  The bone scan performed 11 months prior to separation was normal.  Plain films X-rays taken after separation only identified post-surgical changes in the left knee and were otherwise normal.  The commander’s statement did not mention any knee condition as duty limiting.  The NARSUM noted that the CI reported that in 1999 he injured his left knee doing rushes.  Because of left knee pain he underwent a patellar tendon transfer and lateral release on his left knee 7 July 2000.  He stated that his left knee was asymptomatic until July 2003 when he was deployed to the Gulf region and began wearing heavy field gear.  The C&P exam documented that the knee condition existed prior to his recent deployment to Iraq.  He stated that his knees have gotten worse since his deployment with constant aching under the patellae.  He had no new injuries or procedures to the knees.  He had frequent snapping noises, right knee gave out intermittently, and the left knee did not lock or give out.  He used a wheelchair at school because it was easier to get around because of the combination of hips, back, and knee pain.  Otherwise, he used a cane, except at home where he did not need an assistive device.  The pertinent physical exam findings are summarized in the following chart:

Knee (Leg) ROM (Degrees)	PES 2.5 Mos. Pre-Sep	NARSUM 2 Mos. Pre-Sep	VA C&P 10.5 Mos. Post-Sep	
	Left	Right	Left	Right	Left	Right	
Flexion (140 Normal)	135	135	85	98	135	135	
Extension (0)	0	0	-	-	0	0	
Comment	No instability; Pos. patellar grind bilaterally	Pos. pain w/ patellofemoral compression & patellar tendon; No instability	Pos. crepitus, painful motion & patellar grind; No instability	
§4.71a Rating	10%*	10%*	10%*	10%*	10%*	10%*	
*IAW VASRD §4.59, Painful motion

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered if the bilateral knee condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above.  Members agreed that, based on the above evidence, there was a questionable basis for arguing that either knee was separately unfitting.  The well-established principle for fitness determinations is that they are performance-based.  The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of either knee with the performance of duties at the time of separation.  The Board noted that the CI was found fit when he entered his second period of service with the history of the bilateral knee pain condition and there was no evidence of a new injury or service aggravation.  The STRs first mention of any knee condition was 3 months prior to separation when the CI was getting ROM measurements in preparation for the DES process.  There was no abnormality in either knee on the bone scan; the left knee showed post-surgical changes (from the CI’s first period of service) on plain film X-ray while the right knee was normal.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from either knee was integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a rating for either knee.

Right Ankle Condition.  Only one entry present in the STRs, “R ankle sprain 97 or 98.”  There are no treatment records for any right ankle injury.  The right ankle is mentioned only along with the CI’s other orthopedic conditions.  The right ankle was never separately profiled and only profiled upon entry into the DES.  The commander’s statement did not mention the ankle as causing any duty impairment.  All radiographic studies of the right ankle were normal.  The NARSUM noted that he sprained his right ankle getting out of a military vehicle.  He complained of constant right anterior and lateral ankle pain which was associated with snapping.  The C&P exam documented that his ankle pain was aggravated by his recent deployment and noticed that it was grinding more than in the past.  He had no surgery, no new procedures, and no new injuries to the ankle.  It periodically rolled inward but he had no real sprains nor has he had to seek any medical care for his ankle this past year.  All pertinent physical exam findings are summarized below:

Right Ankle ROM (Degrees)	PES 2.5 Mos. Pre-Sep	NARSUM 2 Mos. Pre-Sep	VA C&P ~ 10.5 Mos. Post-Sep	
Dorsiflexion (20 Normal)	20	5	15	
Plantar Flexion (45)	45	45	45	
Comment	No instability; Pos. tenderness to palpation	Pos. tenderness to palpation; Equivocal instability	Pos. tenderness to palpation; No instability; No Deluca criteria	
§4.71a Rating	0%	10% vs 20%	0% vs 10%	

The Board directed attention to its rating recommendation based on the above evidence. The Board first considered if the right ankle condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above.  Members agreed that, based on the above evidence, there was a questionable basis for arguing that the right ankle condition was separately unfitting.  The well-established principle for fitness determinations is that they are performance-based.  The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of the right ankle with the performance of duties at the time of separation nor were any physical findings documented by the PES and VA examiners which would logically be associated with significant disability.  It should also be noted that there is insufficient evidence in support of a compensable rating for the right ankle condition, even if were conceded as unfitting.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the right ankle condition was integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a separate rating for it.

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 hips, knees and right ankle was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the LBP condition and IAW VASRD §4.71a, the Board, by majority vote, recommends no change in the PEB adjudication.  In the matter of the left hip pain condition, the Board unanimously agrees that it was not separately unfitting and therefore, cannot recommend it for additional disability rating.  In the matter of the right hip pain condition, the Board unanimously recommends a disability rating of 10%, coded 5253 IAW VASRD §4.71a.  In the matter of the left knee pain condition, the Board unanimously agrees that it was not separately unfitting and therefore, cannot recommend it for additional disability rating.  In the matter of the right knee pain condition, the Board unanimously agrees that it was not separately unfitting and therefore, cannot recommend it for additional disability rating.  In the matter of the right ankle pain condition, the Board unanimously agrees that it was not separately unfitting and therefore, cannot recommend it for 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131013, 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 XXXXXXXXXXXXXXXXX, AR20150007058 (PD201301854)

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