RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX  	CASE:  PD-2014-01384  
BRANCH OF SERVICE:  Army  	BOARD DATE:  20150513  
SEPARATION DATE:  20070504  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Petroleum Supply Specialist) medically separated for a right hip condition which 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 condition “chronic right hip/thigh pain” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic right hip pain following right hip fracture from bad [parachute landing fall] …” as unfitting, rated 20%, referencing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.  A subsequent appeal to the Army Board for Correction of Military Records (ABCMR) resulted in no change from the PEB decision.  

CI CONTENTION:  The applicant makes no specific contention in his application.  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 or previously appealed, may remain eligible for future consideration by the ABMCR.  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:  

IPEB – Dated 20070417	VA* (~1 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Hip Pain …	5099-5003	20%	Residuals of Right Femur Fracture	5255	30%**	20070602	
Other x 0 (Not In Scope)	Other x 7	
RATING:  20%	RATING:  40%	
*   Derived from Decision Review Officer (DRO) Decision dated 20071105.  
**Original VA Rating Decision (VARD) dated 20070718 rated 5255 at 20%.  

ANALYSIS SUMMARY:  

Right Hip.  The service treatment record (STR) documented a hip fracture (femur, intertrochanteric) from a parachuting accident in September 2004 (32 months prior to separation) requiring surgical repair (closed reduction, external fixation).  The CI recovered well; but, recurrent pain (attributed to the hardware) was noted in a December 2005 entry after a tour in Korea; and, the surgical nail was removed in March 2006 (14 months prior to separation).  Positive results from this intervention are well evidenced, and an orthopedic entry from January 2007 (4 months prior to separation) documented normal range-of-motion (ROM) measurements.  The examiner noted “drastic improvement,” elaborating that the CI was “able to run three miles on treadmill without pain,” but specified that he was still unable to tolerate soldiering requirements “such as prolonged marching, prolonged standing.”  The permanent profile issued 2 weeks later reflected these limitations, but permitted unlimited walking with no upper body restrictions.  Follow-up X-ray showed degenerative changes, but confirmed a healed fracture and normal alignment.  There is no STR evidence for significant gross ROM limitation, gait disturbance or requirement for assistive device, joint instability, or periods of incapacitation.  

A VA Compensation and Pension (C&P) examination was conducted 6 March 2007 (2 months prior to separation).  The examiner documented the symptoms “pain, right leg swelling, hip pain, walking with a limp” occurring once or twice a week, rated 5/10, and interfering with bending (no other specific functional limitations elaborated).  Despite the subjective history of a limp, the physical exam recorded a normal gait “with no ambulatory aids utilized” and, documented a non-tender joint with 5/5 strength.  The ROM measurements are charted below.  

The narrative summary (NARSUM) was conducted 4 April 2007 (a month prior to separation), and documented that the CI’s “baseline symptoms have improved significantly ... [with] ... no rest pain”; but, pain of “moderate intensity and constant frequency” precipitated by an “increase in activities such as prolonged walking, jumping, marching on uneven terrain and even sitting for a prolonged period of time, as well as driving his truck or climbing in and out of the vehicle ....”  The NARSUM physical exam recorded the absence of tenderness or signs of impingement, without comment regarding gait.  The ROM measurements cited in the NARSUM are from a physical therapy (PT) examination conducted 2 days earlier, and are charted below.  

There are two additional VA C&P examinations in evidence within 12 months of separation: one conducted 2 June 2007 (a month after separation), and another conducted 28 January 2008 (9 months after separation).  The first of these, although noting functional impairment and gait disturbance attributed to right knee pain, did not elaborate any limitations specific to the hip.   At the later VA examination, the CI reported significantly increased limitations (walking limited to 1/4 mile, “stairs are painful,” “sometimes has to use a cane”) which were attributed to the hip; and, an abnormal gait “limping in the hallway” was recorded without specifying the cause.  The ROM evidence from both of these exams is charted below.  The original VARD which conferred a 20% rating for the hip acknowledged separately claimed right knee pain and general right leg complaints “manifesting as your leg falling asleep or you having to walk with a limp.”  The decision noted that no corroboration of knee injury or symptoms, lower extremity neurological complaints, or gait disturbance was found in Service or VA records; and, no knee or separate right leg conditions were service connected.  

The goniometric ROM measurements in evidence which the Board weighed in arriving at its rating recommendation are summarized in the chart below.  

Right Hip ROM	VA C&P  
~2 Mo. Pre-Sep	MEB PT  
~1Mo. Pre-Sep	VA C&P  
~1 Mo. Post-Sep	VA C&P  
~9 Mo. Post-Sep	
Flexion (125⁰ Normal)	125⁰	110⁰	90⁰	100⁰	
Extension (20⁰)	-	0⁰	10⁰	15⁰	
External Rotation (45⁰)	45⁰	-	30⁰	60⁰	
Abduction (45⁰)	45⁰	15⁰	30⁰	-	
Adduction (45⁰)	-	-	-	15⁰	
Comments	All examiners specified painful motion.  The only minimum compensable ROM measurement is MEB PT extension 0⁰ which would rate 10% under code 5251.  	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating under the analogous code 5003 (degenerative arthritis) is derived from stipulations of the USAPDA pain policy (American Medical Association pain ratings); which, IAW DoDI 6040.44, must also be applied by the Board if it is favorable to the VASRD.  The VA’s initial and subsequent Decision Review Officer (DRO) revised ratings were under code 5255 (femur, impairment of) which offers ratings for contiguous hip or knee disability: 20% for “moderate” and 30% for “marked.”  The DRO rationale for raising the rating to 30% invoked both the knee (which remained not service-connected) and hip pain, although the knee component is not within the Board’s scope of review.  Furthermore it relied on “recent” (now 6 months after separation) reports of the same limping and neurological complaints discounted by the initial rater, in addition to “occasional instability” which is not in evidence as a subjective complaint or objective finding in the Service file.  Members agreed that any contribution to disability attributable to the knee is not reasonably subject to Service rating; and, that the subjective severity attributed to the after separation complaints elaborated in the DRO decision is not sufficiently probative to a recommendation premised on severity at separation.  The objective functional limitations in evidence at separation were confined to fairly vigorous soldiering requirements, logically without significant impact on routine occupational demands or any interference with daily activities.  Although this might be conceded as “moderate” hip disability under code 5299-5255, members agreed that “marked” disability was not supported by the evidence probative to separation.  Alternate rating under 5299-5255 is therefore not favorable to the PEB’s rating under the USAPDA pain policy.  No rating higher than 10% is achievable on the basis of ROM limitation or via any other code available under VASRD §4.71a.  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 of the right hip 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.  This mandate is caveated, however, with the stipulation that Service or DoD regulations which are favorable to the applicant will supersede; and, the Board’s recommendation for the right hip condition is thus derived from the USAPDA pain policy as applied by the PEB.  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 20140225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013444 (PD201401384)

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		XXXXXXXXXXXXXXX
			Deputy Assistant Secretary of the Army
			    (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA