RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00456
BRANCH OF SERVICE:  Army	BOARD DATE:  20150610
SEPARATION DATE:  20070801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Bradley Vehicle Mechanic) medically separated for right hip and right knee pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The CI was permitted to take the alternate Army physical fitness test (aerobic portion).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “right hip pain s/p right acetabular fracture” and “mildly increased knee pain from previously, already found unfit, not markedly less fit after (this) additional injury” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated both conditions as a single condition:  “chronic pain of the right hip…chronic right knee pain…for which he was previously rated by the Physical Evaluation Board at 0%” as unfit, rated 10% citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “They should be raised due to the fact that my quality of life has deteriorated.  I can no longer play with my small children due to the fact that my range of motion has decreased expeditiously, and I cannot kneel or crouch, or run, so I sit in a chair, and my children suffer.  So that is one reason I feel my disability % should be raised.  Also I am unable to work in the field I worked in before my injury; therefore I do not earn nearly what I earned before.  I try to do other jobs, but am unable jobs, but am unable to do so because most employment requires experience, or a degree, neither of which I have.”

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:

Informal PEB – Dated 20070426	VA* - (~7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain … Right Hip … in the Right Knee	5099-5003	10%	Post Repair Acetabular Fracture Right Hip	5255	10%	20080228	
			Residual Injury Right Knee with DJD	5261	10%	20080228	
Other x 0 (Not In Scope)	Other x 1 	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20080422 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  As noted above, the IPEB (on 26 April 2007) combined two separate 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.  IAW DoDI 6040.44 the Board must follow suit if the IPEB 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.  In this case, an initial IPEB on13 January 2006 had previously found the knee to be unfitting.  The second IPEB did not dispute the previous finding and concurred that the knee was a separate unfitting condition.  The Board adjudged that both conditions were reasonably separately unfitting, and will focus on the ratings of the conditions below.

Right Hip Condition.  The narrative summary (NARSUM), dated 21 March 2007, noted that the CI was involved in a motor vehicle accident in March 2006 (17 months prior to separation), fracturing his right acetabulum (cup-shaped socket in the pelvic bone that accommodates the head of the femur).  He eventually underwent open reduction and internal fixation, which healed well “except for the usual surrounding area [of] numbness.”  However, he had persistent hip pain (along with exacerbation of his pre-existing right knee pain), especially with the performance of military duties, and was referred to MEB.

At an orthopedic appointment on 30 June 2006 (3 months after surgery and 18 months prior to separation), the CI had flexion 100 degrees (normal 125), abduction 45 degrees (normal), and external rotation 45 degrees (compensable if 10 or less), and painful motion at the extreme of internal rotation.  At a Physical Medicine and Rehabilitation (PM&R) appointment on 8 January 2007, the CI stated his pain was averaging 6/10 and went up to 9/10, was taking both long and short acting narcotics for pain, and was noted to have painful motion.  At a physical therapy evaluation on 7 March 2007 (5 months prior to separation), the CI had painful motion, flexion to 125 degrees, abduction 34 degrees, and external rotation 20 degrees.

The DD Form 2808, Report of Medical Examination, was completed on 21 March 2007 (5 months prior to separation), and reported that the CI had antalgic gait (with cane) and antalgic sitting (“freq[uent] position changes”).  There was guarding with attempted passive range-of-motion (ROM) of the hip, no surface tenderness to palpation, and “anesthesia directly over the surgical sites ….”  The NARSUM was written in conjunction with this examination; the examiner described many military duty restrictions (repeated in the physical profile) and stated, “Precipitating and exacerbating factors: standing, walking, jumping, or lifting heavy weight.  Some difficulty with dressing, but compensating adequately.”

At the VA Compensation and Pension (C&P) exam performed on 28 February 2008, 7 months after separation, the CI reported that his hip was progressively worse.  Current treatment consisted of oral narcotics.  On examination he had flexion to 90 degrees, abduction, 35 degrees, and external rotation 50 degrees; with painful motion but no additional functional impairment following repetitive use.  The CI was ambulatory without an assistive device and had antalgic gait (right leg lag).  He had tenderness on the lateral aspect of the hip, and normal muscle strength without atrophy or spasm of the lower extremities.  The examiner listed many activities of daily living that were affected by the hip pain.

The Board directed attention to its rating recommendation based on the above evidence.  The IPEB rated the right hip and right knee together under analogous code 5099-5003 (degenerative arthritis) at 10%, citing constant and slight pain.  The VA rated the condition under code 5255 (impairment of femur) at 10%, citing malunion of the hip with slight hip disability.  Members agreed that the CI’s disability was best described under code 5255 at 10% (slight hip disability), and that the service treatment record (STR) did not support a higher evaluation of 20% (moderate hip disability), with no restrictions such as limited flexion to 30 degrees or loss of abduction beyond 10 degrees.  There was not a pathway to a higher rating based on ankylosis, ROM, nonunion, or false joint.  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 condition.

Right Knee Condition.  The STR detailed that that the CI injured his right knee in Basic Combat Training in November 2003 (almost 4 years prior to separation) while jumping off a truck, hyperextending the knee and falling to the right.  He returned to duty, returned for follow-up in May 2004 because of persistent pain and swelling, had normal X-rays, and was treated for presumptive patellar tendonitis and/or patellofemoral syndrome.  A magnetic resonance imaging showed no effusion, intact menisci and ligaments, and a small popliteal fossa cyst, which was deemed to be nonspecific.  He failed to improve with further conservative therapy, was given a permanent profile, and referred for MEB.  On 13 January 2006 (19 months prior to separation) his case was adjudicated by the IPEB and he was found unfit for the right knee pain, which was rated under code 5099-5003 at 0%, citing full ROM, no instability, and pain of slight intensity and occasional frequency.

After this board but before the CI was separated, he was involved in a motor vehicle accident, injured his right hip (detailed above), and aggravated the pain in his right knee.  After surgery on the hip, the CI was referred to the MEB.

At an evaluation by orthopedics on 12 September 2005 (almost 2 years prior to separation, completed for the original MEB), the CI complained of knee pain worse with extra weight and standing in formation, occasional joint swelling, and no locking or snapping sensation.  On examination, there was joint line tenderness, tenderness distal to the patella in the patellar tendon, no joint instability, and negative McMurray test (for meniscal damage).  The ROM was 0 to 130 degrees which was categorized as “normal” by the examiner (but was less than the 0-135 degrees measured on the left side and the 0-140 degrees deemed normal by the VASRD).  A physical profile written a few days later listed many duty and activity restrictions, and the commander’s letter of evaluation described the CI’s inability to perform his duties or participate in the unit physical training program.

An X-ray of the right knee in March 2006 showed no abnormalities.  At the evaluation by PM&R on 8 January 2007 (7 months prior to separation), the examiner reported “radicular [symptoms] into the R knee.  Denies numbness.”  Knee jerk (reflex) was normal.  The physical therapy evaluation on 7 March 2007 (5 months prior to separation) demonstrated flexion 140 degrees (normal to 140) and extension 0 degrees (normal to 0), and “Pain was not the limiting factor.  Pnt reached physiologic end range of joint.  Overpressure into flexion increased patient’s knee pain.”

A DD Form 2807-1, Report of Medical History, was completed on 21 March 2007 (5 months prior to separation).  The CI stated that he his knee swelled frequently, locked and was painful, gave out from time to time, and was frequently numb.  In the accompanying examination, there was crepitus of the knee, tenderness at the inferior pole of the patella, and no instability.
The NARSUM detailed that the CI’s chief complaint included “increased pain now in right knee,” and stated, “mildly increased knee pain from previously, already found unfit, not markedly less fit after this additional injury.”  A permanent L3 physical profile written on 21 March 2007 referred to both the hip and knee.  In a statement to the MEB, the CI’s commander mentioned both the hip and knee issues.

X-rays of the knees on 5 September 2007 (a month after separation) showed minimal symmetrical degenerative joint disease.  At the VA C&P exam on 28 February 2008 (7 months after separation), the course of the CI’s knee was reported as, “Progressively worse.”  Current treatment consisted of oral narcotics.  On examination, flexion was 135 degrees (with painful motion) and extension was 0 degrees.  There was no ligament laxity, McMurray’s meniscus test was negative, and there was no additional functional impairment following repetitive use.  The examiner listed many activities of daily living that were affected by the knee pain.

The Board directed attention to its rating recommendation based on the above evidence.  Exams indicated that the CI had normal (full) extension of the knee and slight (if any) loss of flexion; they were inconsistent whether there was painful motion.  However, the STR and VA exam were consistent that the CI had loss of function of the knee.  The disability (and loss of function) of the knee was well-described in the STR prior to his the injury, and there was no evidence that it improved in the interim.  Members agreed that the record did reflect functional impairment that was ratable under §4.40 (functional loss), and that rating the condition analogously under code 5003 at 10% was appropriate since the decreased flexion was not compensable under code 5261, at least one X-ray demonstrated degenerative changes, and the functional loss described in the STR.  There was not a pathway to a higher rating based on ankylosis, instability, symptoms of cartilage damage, or ROM.  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 knee 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the hip and knee conditions was operant in this case and the conditions were adjudicated independently of that policy by this Board.  In the matter of the right hip condition, the Board unanimously recommends a disability rating of 10%, coded 5255 IAW VASRD §4.71a.  In the matter of the right knee 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:

CONDITION	VASRD CODE	RATING	
Chronic right hip pain, post repair of acetabular fracture	5255	10%	
Chronic right knee pain 	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140115, 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 XXXXXXXXXXXXXXXXXXXXXXXXX, AR20160002160 (PD201400456)

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