RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02029
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090427

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Motor Transport Operator, medically separated for “chronic left hip pain” and “major depressive disorder,” rated 10% and 10%, respectfully, with a combined disability rating of 20%.

CI CONTENTION:  His mental health and hip conditions are preventing him from obtaining or maintaining gainful employment.  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20090213	VARD - 20090609	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Hip Pain …	5099-5003	10%	DJD, Left Hip ...	5019	10%	20090518	
Major Depressive Disorder…	9434	10%	Major Depressive Disorder …	9434	10%	20090518	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Left Hip.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented a 2006 atraumatic onset of bilateral lower leg pain felt to be shin splints, but a bone scan (and subsequent imaging) demonstrated a left hip lesion, following which a complaint of left hip pain developed.  There were ensuing STR entries for the development of a gait disturbance and a trial of crutches, but all later entries approaching separation documented a normal gait.  There were numerous STR entries providing range of motion (ROM) measurements with modest limitations, but none reaching VASRD §4.71a minimum 10% rating thresholds as defined below.  An orthopedic consult for the NARSUM was dated 9 November 2007 (18 months prior to separation) and the examiner opined that the hip lesion was a fibroma or fibrous dysplasia (not malignant), that it was not likely the etiology of the hip pain, and that a biopsy or surgical intervention was not indicated.  The physical examination recorded a normal gait, joint tenderness, and 5/5 strength in all groups.  Conservative treatment did not result in improvement sufficient to allow unrestricted duty, and the MEB forwarded “bilateral chronic hip pain” to the PEB for adjudication.

The NARSUM was conducted 13 May 2008 (12 months prior to separation) and documented “daily” pain rated 2/10 with exacerbations to 6-7/10 by prolonged standing and sitting.  The physical examination recorded joint tenderness with normal strength; and, provided ROM measurements of flexion to 105 degrees (normal 125, 45 for minimum 10%), extension to 10 degrees (normal 20, 5 for minimum 10%), and abduction to 40 degrees (normal 45, 10 for minimum 10%), with documentation of normal (degrees not specified) external rotation and adduction, and specifying painful motion.

A VA Compensation and Pension (C&P) examination was conducted 18 May 2009 (3 weeks after separation) and documented pain rated 5/10 “aggravated by walking, standing, and exercise.”  The physical examination recorded an antalgic gait, joint tenderness, the absence of atrophy, and normal strength.  Measured ROM was flexion to 125 degrees, extension to 20 degrees, external rotation to 40 degrees (normal 45, 15 for minimum 10%), abduction to 25 degrees (normal 45, 10 for minimum 10%), and adduction to 30 degrees (normal 45, “cannot cross legs” [~10 degrees] for minimum 10%); specifying painful motion in all planes.

The Board directed attention to its rating recommendation based on the above evidence.  It was first considered that, although the MEB forwarded the hip pain as a bilateral condition, the PEB (as well as the VA) rated only the left hip.  The Board considered this to constitute a de facto PEB determination that the right hip was not unfitting.  Since consideration of unfitting conditions was not requested by the CI, however, a fitness or rating recommendation for the right hip was not within the Board’s scope of review as defined above.  The PEB’s 10% rating of the left hip analogously to 5003 (degenerative arthritis) was consistent with §4.71a criteria for the service evidence (conceding painful motion).  The VA’s 10% rating under 5019 (bursitis, defaulting to criteria of 5003) cited painful motion.  There was 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 (femur, impairment of) which offers ratings for contiguous hip disability: 20% for “moderate” and 30% for “marked.”  Members agreed, however, that the analogous application of this fracture code (with no fracture present) was not sufficiently justified by VASRD §4.20 (analogous ratings) in this case, which satisfies compensable criteria under more applicable joint codes; and, further agreed that, even if the code were conceded, it would not be advantageous since the disability at separation was not convincingly characterized as moderate.  After due deliberation, and in consideration of all 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 left hip condition.

Major Depressive Disorder.  The CI had no pre-existing mental health (MH) diagnosis and was not exposed to combat.  The first STR entry for MH complaints was in December 2006.  He was complaining of depression and irritability in the setting of a tumultuous marital relationship which ended in divorce.  This was exacerbated by the stress of his hip condition and ensuing MEB proceedings.  The CI was referred for MH counselling and prescribed an anti-depressant (Celexa).  There was no STR evidence of suicidal ideation or attempts, serious disciplinary or legal issues, alcohol/substance abuse, or psychiatric crisis/hospitalization.

A psychiatric addendum for the NARSUM was based on an evaluation of 21 May 2008 (11 months pre-separation).  The examiner described the CI as “depressed with symptoms of disturbed sleep, decreased interests, increased guilt, decreased energy, decreased concentration, increased irritability, but denied disturbance in appetite or suicidal/homicidal ideation.”  It was noted that he “has not noticed much improvement” with the antidepressant.  The mental status examination (MSE) recorded a “pretty good” mood but “blunted, almost flat” affect, and was otherwise normal with intact cognition.  The Axis I diagnosis was “major depressive disorder, moderate to severe episode without psychotic features.”  The Global Assessment of Functioning (GAF) assignment was 50 (at the cusp of moderate/severe impairment); and, the assessment of social and industrial impairment (IAW DoDI 1332.39 [rescinded]) was “definite.”

There were multiple outpatient STR entries both before and after the above psychiatric assessment which documented the absence of recent depression.  The commander’s performance statement (5 months after the psychiatric assessment) did not reference any MH impairment and specified adequate performance in all areas of cognition and interpersonal functioning.  The CI’s counsel submitted a memorandum to the PEB on 12 February 2009 (2 months prior to separation) which stated, “[CI] currently works a full time regular duty day.  He reports that his depression in no way limits his ability to perform these [speciality] duties, and feels that it would not limit his ability to perform as an 88M.”

A VA mental disorders C&P examination was conducted 22 May 2009 (a month afterseparation).  The only documented symptoms endorsed by the CI were intermittent sadness, insomnia due to pain, and fatigue.  All other MH symptoms were denied.  He remained on psychiatric medication, and his domestic stressors were resolved (“pretty good” relationship with his fiancé).  He was planning to seek employment and the examiner opined that his temporary unemployment was not due to MH impairment.  The documented MSE was normal in all areas with a “pretty good” mood and “full” affect.  The Axis I diagnosis was “major depressive disorder, single episode, in partial remission” and the GAF assignment was 71 (slight, in any, impairment).  The examiner opined that MH symptoms “are controlled by continuous medication...[and]...are not severe enough to interfere with occupational and social functioning.”

The Board directed attention to its recommendations based on the above evidence.  The Board first considered whether the provisions of VASRD §4.129 for any “mental disorder that develops in service as a result of a highly stressful event” were applicable to this case (as mandated by DoD).  Although there were contributory stressors that developed in service, members agreed that there was no service-connected event which was logically consistent with the meaning and purpose of §4.129; thus, it was not appropriate for this case.  The same opinion was expressed in the VA rating decision.

The Board then turned to deliberation of a fair rating recommendation at the time of separation.  Members agreed that VASRD §4.130 criteria for a 50% rating (“occupational and social impairment with reduced reliability and productivity) were not met.  Deliberations thus settled on recommendation for a 10% rating (“occupational and social impairment due to mild or transient symptoms which decrease work efficiency…only during periods of significant stress”) versus a 30% rating (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”).  Although it was agreed that the acuity and MH impairment documented at the time of the MEB psychiatric examination could be fairly assessed as meeting the 30% criteria, this was mitigated by all of the contemporary and subsequent evidence.  Members agreed that the outpatient STR notes, the commander’s statement, the statement by CI’s counsel, and the post-separation psychiatric C&P examination (the basis for a 10% rating by the VA) were all compelling evidence for concluding that 30% criteria were not present at separation.  After due deliberation, and in consideration of all 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 major depressive disorder.

BOARD FINDINGS:  In the matter of the left hip condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the major depressive disorder and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  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 20140505, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXXXX AR20160007472 (PD201402029)

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:

Enclosure

CF:
( ) DoD PDBR
( ) DVA