RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 	CASE:  PD-2014-01297
BRANCH OF SERVICE:  Army 	 SEPARATION DATE:  20070913

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (62B, Engineer) medically separated for a right hip condition that 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 diagnosis “chronic right hip pain (slight/intermittent), status-post core decompression” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five additional orthopedic conditions, all judged to be meet retention standards.  The informal PEB adjudicated “right hip pain following core decompression for a right femoral head cyst” as unfitting, rated 10%, citing the US Army Physical Disability Agency (USAPDA) pain policy. All remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION: The CI elaborated no specific contention in his application.  The 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 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:  
   
Service IPEB – Dated 20070815	VA* - (5 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Hip Pain ...	5099-5003	10%	Surgical Residuals, Right Hip	5253-5252	10%	20070412	
Other x 5 (Not in Scope)	Other x 12	20070412	
Combined: 10%	Combined:  50%	
*Derived from VA Rating Decision (VARD) dated 20071102 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

Right Hip Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an onset of right hip pain following two separate injuries during a deployment to Iraq (August 2004 – August 2005).  The CI continued to experience pain after redeployment and was diagnosed with a bone cyst of the femoral head.  Initial STR entries indicate that there was range-of-motion (ROM) limitation and gait disturbance which normalized with physical therapy (PT), but pain persisted and a surgical remedy (decompression of the cyst) was attempted in November 2006 (10 months pre-separation).  There are few outpatient STR entries in evidence after the surgery, but a PT entry 14 weeks after the surgery notes “a significant decrease” in ROM and the development of right gluteal weakness (4/5); corroborating (along with the MEB evidence presented below) the CI’s report to the NARSUM examiner that his condition was worsened after the surgery.  The commander’s performance statement (7 months pre-separation) documented that the CI was “walking with a cane and limp ... appearing to be in pain with every step” and that his duties were confined to “minimal walking and no stair climbing.”  Measured ROM for the MEB was provided by PT 6 months pre-separation and recorded flexion to 115 degrees (normal 125, minimum compensable 45), extension to 5 degrees (normal 20, minimum compensable 5), external rotation of 35 degrees (normal 45, minimum compensable 15), abduction to 25 degrees (normal 45, minimum compensable 10), and adduction to 25 degrees (normal 45, minimum compensable “cannot cross legs” [~10 degrees]); specifying motion limited by pain.  The MEB’s DD Form 2808 was conducted 2 days later and noted that the CI was using a cane and had a “moderate limp,” along with non-specifically decreased ROM.  

A VA Compensation and Pension (C&P) examination was conducted 12 April 2007 (5 months pre-separation) and documented constant pain rated 4-8/10, noting that the CI “gives out, walks with a limp and must use a cane;” and, listed functional limitations of “no running, jumping, marching, sports, prolonged walking or standing.”  The VA physical examination recorded an antalgic gait “favoring the right hip,” and joint tenderness without weakness or instability.  The VA measured ROM was normal in all planes except for flexion to 110 degrees and adduction to 15 degrees, annotating painful motion.

The NARSUM was conducted 11 July 2007 (2 months pre-separation) and documented “chronic daily” pain rated “slight/intermittent” rendering the CI “unable to run or stand or sit for long periods.”  The NARSUM physical examination recorded “a slight limp, favoring his right hip,” joint tenderness, and 5/5 strength of hip flexors and extensors.  The NARSUM reported the ROM measurements by PT as detailed above.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) VASRD was determined by the USAPDA pain policy, but was consistent with VASRD §4.71a criteria for the MEB findings and ROM evidence.  The VA’s 10% rating under 5253-5252 (limitation of adduction and flexion) cited painful motion, and was consistent with the C&P findings and ROM. There is no ROM limitation, ankylosis, flail joint, or instability that would achieve a rating higher than 10% under any alternate code; other than consideration of analogous rating under 5299-5255 (the possibly erroneous VA code) which offers ratings for contiguous hip disability: 20% for “moderate” and 30% for “marked.”  Members agreed that, in light of the fairly significant functional disability evidenced in this case, that analogous application of 5255 was supported IAW VASRD §4.7 (higher of two evaluations).  Neither 5003 based rating nor rating under any other joint code available in VASRD §4.71a adequately captures the disability in evidence at separation.  Given the persistent gait and ambulatory compromise and the functional limitations elaborated above, members agreed that the contiguous hip disability was fairly characterized as “moderate” and justified a 20% rating under 5355 criteria.  A 30% recommendation for marked disability was entertained, but members agreed that this was not reasonably supported by the evidence.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the right hip condition under code 5299-5255.

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 was operant in this case and it was adjudicated independently of that policy by the Board.  In the matter of the right hip condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5255, 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:  

UNFITTING CONDITION	VASRD CODE	RATING	
Bone Cyst with Surgical Residuals, Right Hip	5299-5255	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140312, 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 XXXXXXXXXX, AR20160003973 (PD201401297)

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