RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00751
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060526

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Land Combat Electrician) medically separated for a bilateral hip condition which 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).  The diagnoses “bilateral femoral acetabular stress fractures” and “trochanteric bursitis, bilateral” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted.  The Informal PEB appropriately combined the MEB submissions into a single unfitting condition, “bilateral hip pain,” rated 0%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  Each hip was separately rated by the VA.  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 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 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:  

IPEB - Dated 20060405	VA* - (~3 Yrs. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Hip Pain	5099-5022
 5019	0%	Right Hip s/p Acetabular Stress Fracture	5299-5252	10%	20090630	
			Left Hip s/p Acetabular Stress Fracture		10%		
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  0%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20091016 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:   The Board notes that the earliest VA evaluation was over 3 years after separation.  As elaborated above, the Board’s assessment must be derived from evidence that can be reasonably interpreted to reflect disability at the time of separation.   Therefore the evidence from the service treatment record (STR) was assigned the more determinant probative value with respect to the Board’s recommendation.   

Bilateral Hip Condition.  The narrative summary (NARSUM) documents an onset of bilateral hip pain with exertional activities in January 2005, soon after basic training (October 2004 entry).  There is a paucity of entries in the available STR, and the few that are present address left hip pain.   The only significantly probative one is a primary care note from August 2005 (9 months pre-separation) which documents a normal gait, grossly normal range-of-motion (ROM) of the left hip, and negative signs of joint impingement or instability.  There is a normal X-ray report of the left hip in the STR, and the NARSUM documents a bone scan which demonstrated the stress fractures referenced in the MEB submission.  

The NARSUM was conducted 12 December 2005 (5 months pre-separation) and documented “left hip is more painful than on the right” noting limitations with “prolonged exertion ... including running, squatting, and jumping.”  The pain was not quantified other than to state that “while walking is not severe...any exertion causes pain....”  The NARSUM physical examination recorded bilateral hip tenderness and “pain with active and passive motions in all planes, including flexion/extension and abduction/adduction...worse with internal rotation...Otherwise, he has no mechanical obstruction to hip motion.”  The MEB’s DD Form 2808, Report of Medical Examination, was from February 2006 (3 months pre-separation) and performed by the NARSUM examiner.  It documented greater joint tenderness on the left and non-specifically decreased (charted as “↓”) ROM with painful motion on the left.  Both the L3 profile and the commander’s statement specified only left hip pain.  

The significantly delayed (see above) VA Compensation and Pension (C&P) examination documented persistent bilateral hip pain without “any overall functional impairment,” a normal gait, greater tenderness on the left, and normal measured bilateral ROM in all planes except for left hip flexion to 90 degrees (normal 125, minimum compensable 45).

The Board directed attention to its recommendations based on the above evidence.  The PEB’s bilateral rating of 0% analogously to code 5003 for degenerative arthritis (codes 5022 [periostitis] and 5019 [bursitis] default to criteria of 5003) does not comport with the VASRD §4.71a stipulation for a 10% rating under 5003 for “2 or more major joints”, the latter without regard to ROM limitation or other factors.  The evidence does not support a compensable rating under any of the codes for limitation of motion at the hip; and, there is no ankylosis, fracture deformity, flail joint or instability, or nonunion/malunion that would achieve separate ratings higher than 10%.  The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating.  The evidence makes clear that the left hip was associated with significantly more disability than the right one in this case.  The disparity was such that the question is raised of whether the right hip was reasonably justified as separately unfitting.  It was not clinically active in the STR, was associated with relatively benign physical exam findings, was not profiled, and was not implicated by the commander.  After due deliberation, members agreed that there was insufficient performance based evidence to support a conclusion that the functional impairment from the right hip alone would have rendered the CI unable to perform his MOS or continue military service; and, accordingly cannot recommend a separate rating for it. 

Having so concluded, the Board turned to deliberation of the appropriate coding and rating recommendation for the unfitting left hip condition.  As above there is no support for a rating higher than 10%, but members agreed that painful motion was supported to achieve the minimum compensable rating of 10%.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the left hip condition; proposing code 5022 for its overall clinical compatibility.
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 Service-combined bilateral hip condition, the Board unanimously recommends a rating of 10% for an unfitting left hip condition coded 5022 IAW VASRD §4.71a; but, unanimously agrees the right hip condition was not reasonably justified as separately unfitting and thereby not subject to disability rating.  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	
Stress Fracture with Bursitis, Left Hip	5022	10%	
Stress Fracture with Bursitis, Right Hip	Not Unfitting	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140210, 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 XXXXXXXXXXXXXXXXXX, AR20160002766 (PD201400751)

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 10% 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