RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00796
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150311
Separation Date:  20090305

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Aviation Electric Mate) medically separated for right hip femoral, acetabular impingement, operated and left hip femoral acetabular impingement, operated.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The right hip femoral, acetabular impingement, operated and left hip femoral acetabular impingement, operated conditions, characterized as “pain in joint involving pelvic region and thigh” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition.  The Informal PEB (IPEB) adjudicated “right hip femoral, acetabular impingement, operated and left hip femoral acetabular impingement, operated” and depressive disorder as unfitting, rated 10%, 10%, and existing prior to service respectively, with likely application of Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II (“Conditions that contribute to the unfitting conditions”) right hip labral tear, left hip labral tear, operated, and Category IV (“Conditions that do not constitute a physical disability) nicotine dependence and caffeine dependence.  The CI appealed to the Formal PEB, which made the following changes to the IPEB finding(s) and rating(s): “right hip femoral, acetabular impingement, operated and left hip femoral acetabular impingement, operated” as unfitting, rated 10%, and 10%, with likely application of DoDI 1332.39 and VASRD.  The remaining conditions were determined to be Category II right hip labral tear, left hip labral tear, operated; Category III (“Conditions that are not separately unfitting”) Depressive disorder, not otherwise specified (NOS); and Category IV, nicotine dependence and caffeine dependence.

CI CONTENTION:  “I believe the Navy should have also considered my depression and anxiety as a condition that rendered me unfit for duty.”

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:

Service FPEB – Dated 20081105	VA - (12 Mos. Pre -Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Hip Femoral Acetabular Impingement	5099-5003	10%	Status-Post (s/p) Arthroscopy Surgery Right Hip Degenerative Arthritis with Scars	5252-5010	10%	20080319	
Right Hip Labral Tear	Category II					
Left Hip Femoral Acetabular Impingement	5099-5003	10%	S/P Left Hip Arthroscopic Surgery with Scars	5252-5024	10%	20080319	
Left Hip Labral Tear	Category II					
Depressive Disorder, NOS	Category III	Adjustment Disorder with Depressed and Anxious Mood	9440	30%	20080319	
Other x2 (Not in Scope)	Other x8	
Combined:  20% -w/ Bilateral Factor (BF) 1.9%	Combined:  50% - BF 1.9%	
Derived from VA Rating Decision (VARD) dated 20081217 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The PEB adjudicated the right hip labral tear as a Category II condition (“Conditions that contribute to the unfitting conditions”).  This condition will be discussed below as part of the unfitting right hip femoral acetabular impingement condition.

The PEB adjudicated the left hip labral tear as a Category II condition (“Conditions that contribute to the unfitting conditions”).  This condition will be discussed below as part of the unfitting left hip femoral acetabular impingement condition.

Right Hip Femoral Acetabular Impingement Condition.  The CI developed right hip pain in 2005 and presented to Family Practice on 6 January 2006 for pain and reports of “catching” when he moved from sitting to standing.  The examiner diagnosed iliopsoas bursitis and ordered a bone scan.  A right hip bone scan demonstrated an asymmetric diminished isotope uptake in the right femoral head - which was interpreted as a possible mild avascular necrosis.  A right hip magnetic resonance imaging (MRI) performed was normal.  The CI was referred to physical therapy (PT) for right hip pain that radiated to the right knee along the lateral thigh that increased with sitting to standing and tingling in the right lateral thigh.  There was a physical exam finding of a positive Ober’s test (tightness of the iliotibial band).  The family practitioner noted on 21 July 2006 worsening of right hip pain with posterior right hip pain when sitting and abducting legs.  There were physical exam findings of decreased range-of-motion (ROM) with external rotation greater than internal rotation and pain was produced with adduction against resistance and with extreme abduction.  The orthopedist noted right hip pain “catching” and clicking with position changing from sitting to standing.  The physical exam findings were normal; however, the examiner diagnosed a possible acetabular pathology.  The CI underwent a right hip arthrogram on 7 December 2006 which demonstrated mild to moderate fraying of the superior right acetabular labrum and loss of lateral concavity at the right femoral head and neck.  The CI was placed on a 6-month LIMDU on 21 December 2006 to 21 June 2007 for a right hip labral tear with specific restrictions documented on the form.  The CI was placed on a second 6-month LIMDU on 21 June 2006 to 21 December 2007 for a right hip labral tear with specific restrictions documented on the form.  The civilian orthopedist documented mild decreased internal rotation onto the right hip; mild pain with hip abduction and pain with flexion; abduction and external rotation and pain with maximum hip abduction.  The examiner recommended a right hip arthroscopy.  The CI was referred to a different civilian orthopedist who specialized in hip surgery.  The orthopedist documented a dull, achy pain aggravated by activity as well as by prolonged sitting.  There were physical exam findings of a slightly antalgic gait, limited ROM with a positive flexion abduction and external rotation (FABER) on the right and a positive flexion adduction internal rotation (FADIR) sign.  The examiner diagnosed a combination of right hip cam and pincer-type impingement with a labral tear.  The CI underwent a right hip arthroscopy with extensive surgery on 17 May 2007.  The CI was seen for post-operative follow-up with discomfort on hip flexion to 90 degrees with internal and external rotation.  The examiner noted normal progression of right hip recovery.  The right hip frog-lateral X-ray was normal without evidence of complication.  The VA Compensation and Pension (C&P) exam performed 11 months prior to separation documented weakness, pain with walking and changing position from sitting to standing and stiffness when sitting for long periods.  The VA C&P physical exam findings are summarized in the chart below.  The MEB narrative summary (NARSUM) exam 10 months prior to separation documented that nearing the end of his third LIMDU, the CI was still unable to sit or stand for long periods of time, was unable to run, bend or squat without pain or climb.  The MEB NARSUM physical exam findings are summarized in the chart below.  The Family Practitioner documented right hip arthropathy and prescribed a non-steroidal anti-inflammatory drug (NSAID) and stopped the narcotic medication.  The orthopedist documented a mildly antalgic gait and the CI reported that the hip was slowly improving.  The non-medical assessment documented that the CI had been away from his duties 560 hours to attend medical appointments and treatments with an additional 77 days of convalescent leave totaling 2,408 hours.  The commander further noted that the CI suffered from chronic pain in both hips and this condition significantly restricted his mobility and prevented him from performing his duties.  The orthopedist documented possible mild right hip continued improvement; however, there was still significant pain and a limp.  The PT performed ROM’s for the MEB exam.  The PT physical exam findings are summarized in the chart below.

There were ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Right Hip (Thigh) ROM (Degrees)	VA C&P ~11.5 Mos. Pre-Sep	MEB ~10 Mos. Pre-Sep	PT ~6Mos. Pre-Sep	
Flexion (125 Normal)	90	90*	95	
Extension (20)	20	- 	25	
Internal Rotation (40)	40	15	-	
External Rotation (60)	60	60 (70*)	25	
Abduction (0-45)	40	 -	35	
Adduction (45)	15	 -	20	
Comment	Gait nml; motor/sensory/reflexes nml; tenderness, guarding of movement;	Significant limp; very slow gait; 5/5 motor strength; sensory nml; *ROM with pain	¼ squat with difficulty; pain	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the right hip femoral acetabular impingement condition as 5099 analogous to 5003 (Arthritis), degenerative (hypertrophic or osteoarthritis) and rated at 10%.  The VA coded the s/p arthroscopy surgery right hip degenerative arthritis with scars condition as 5252 (Thigh), limitation of flexion of with 5010 (Arthritis, due to trauma), substantiated by X-ray findings and rated at 10%.  All exams proximate to separation clearly documented pain with all activity.  The NARSUM examination and service treatment notes warranted application of VASRD §4.59 (painful motion) and §4.40 (functional loss) to achieve the minimal compensable rating (10%).  There was no compensable ROM impairment under either the 5251 (limitation of extension) or 5252 (limitation of flexion) codes.  Code 5253 (thigh, impairment) was considered; but, loss of motion beyond 10 degrees abduction was not documented and this was the only route to a rating higher than 10% under that code.  Thus there is no route to a rating higher than 10% under any applicable joint code and no coexistent pathology which would merit additional rating for the hip condition under a separate code.  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 right hip femoral acetabular impingement condition.

Left Hip Femoral Acetabular Impingement Condition.  The CI reported left hip pain similar to the right hip in August 2007.  He underwent an MRI arthrogram for a 2-month history of left hip pain which demonstrated a linear tear through the anterior inferior left labrum.  The orthopedist noted that moderate left hip flexion and abduction elicited pain.  The civilian orthopedist reviewed the left hip MRI and noted physical exam findings of limited ROM with an antalgic gait.  The examiner diagnosed a pincer type femoral acetabular impingement with the potential for a small cam mechanism and an associated labral tear of the left hip.  The CI underwent a left hip arthroscopy with extensive surgery to the left hip on 30 January 2007.  The civilian orthopedist saw the CI frequently for post-operative follow-up and noted on 23 April 2008 that despite limited flexion of 90 degrees, that he had normal motor strength, intact sensation and symmetric reflexes.  The VA C&P exam 11 months prior to separation documented weakness, pain with walking and changing position from sitting to standing and stiffness when sitting for long periods.  The VA C&P physical exam findings are summarized in the chart below.  The MEB NARSUM exam 10 months prior to separation documented that the CI continued to complain of significant left hip pain, significant limp and an inability to bend, squat, climb or run.  The MEB NARSUM physical exam findings are summarized in the chart below.  The family practitioner documented left hip arthropathy and prescribed a NSAID and stopped the narcotic medication.  The CI was evaluated in the Urgent Care clinic for recurring left hip pain with physical exam findings of pain with abduction and internal rotation.  The examiner ordered a narcotic medication to control the pain.  The civilian orthopedist noted that if the left hip pain continued that he would recommend a steroid injection into the left hip. The PT performed ROM’s for the MEB exam.  The PT physical exam findings are summarized in the chart below.

Left Hip (Thigh) ROM (Degrees)	VA C&P ~11.5 Mos. Pre-Sep	MEB ~10 Mos. Pre-Sep	PT ~6 Mos. Pre-Sep	
Flexion (125 Normal)	85	90	105	
Extension (20)	25	-	20	
Internal Rotation (40)	40	15	-	
External Rotation (60)	60	60	30	
Abduction (0-45)	45	-	35	
Adduction (45)	5	-	20	
Comment	Gait nml; motor/sensory/reflexes nml; tenderness, guarding of movement;	Significant limp; very slow gait; 5/5 motor strength; sensory nml; *ROM with pain	¼ squat with difficulty; pain	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the left hip femoral acetabular impingement condition as 5099 analogous to 5003 (Arthritis), degenerative (hypertrophic or osteoarthritis) and rated at 10%.  The VA coded the s/p arthroscopy surgery left hip degenerative arthritis with scars condition as 5252 (Thigh), limitation of flexion of with 5024 (Tenosynovitis) and rated at 10%.  All exams proximate to separation clearly documented pain with all activity.  The NARSUM examination and service treatment notes warranted application of VASRD §4.59 (painful motion) and §4.40 (functional loss) to achieve the minimal compensable rating (10%).  There was no compensable ROM impairment under either the 5251 (limitation of extension) or 5252 (limitation of flexion) codes.  code 5253 (thigh, impairment) was considered; but, loss of motion beyond 10 degrees abduction was not documented and this was the only route to a rating higher than 10% under that code.  Thus there is no route to a rating higher than 10% under any applicable joint code and no coexistent pathology which would merit additional rating for the hip condition under a separate code.  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 left hip femoral acetabular impingement condition.

Contended PEB Conditions.  The contended condition adjudicated by the PEB as a as a Category III condition (“Conditions that are not separately unfitting”) was the depressive disorder, NOS condition.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  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 depressive disorder, NOS condition was not profiled; nor was this condition implicated in the commander’s statement.  The MEB did not forward this condition to the PEB and although the PEB acknowledged this condition, the condition was not judged to fail retention standards.  The psychiatric C&P exam 11 months prior to separation documented that the CI reported adjustment problems associated with deployments and frequent geographic moves that separated him from his family and resulted in significant anxiety, stress and homesickness.  The CI never had any emergency room visits for a psychiatric condition, and he denied any homicidal or suicidal ideations.  The CI never lost any time from work.  The examiner diagnosed adjustment disorder with depressed and anxious mood, stable and assigned a Global Assessment of Functioning (GAF) at 70 - some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.  The psychiatric NARSUM Addendum approximately 9 months prior to separation documented that the CI received counselling by a social worker for adjustment disorder with anxiety and depression from February 2007 to September 2007.  The examiner noted that the CI continued to fixate on his past relationships and the death of his daughter who died prenatally 7 years prior to this exam.  The CI never had any emergency room visits for a psychiatric condition, and he denied any homicidal or suicidal ideations.  The CI never lost any time from work due to his depressive disorder.  The examiner specifically noted that “until he completed the Beck Depression Inventory, he could not identify any specific depressive symptoms at this time.”  The CI was taking an antidepressant medication; however, the examiner noted that the CI continued to have problems with motivation, drive, concentration and energy.  The examiner opined that the CI “did not meet criteria for major depressive disorder but it would appear that he does have depression.”  The examiner diagnosed depressive disorder, NOS with a GAF of 50 - any serious impairment in social, occupational, or school functioning.  The Social Worker continued to diagnose adjustment disorder with anxiety and depressed mood.  Approximately 4 months after separation the psychiatrist documented that the CI was not depressed on current medications for depression.  He was working at two jobs and married.  The CI had no psychiatric emergency room visits, no psychiatric hospitalizations and no suicidal or homicidal ideations.  The depressive disorder, NOS was reviewed by the action officer and considered by the Board.  There was no indication from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation 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 depressive disorder, NOS contended condition and, therefore, no additional disability rating can be 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.  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 right hip femoral acetabular impingement condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left hip femoral acetabular impingement condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended depression NOS condition, 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 20140219, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 17 Aug 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN