RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02648
BRANCH OF SERVICE:  Army	BOARD DATE:  20150429
SEPARATION DATE:  20041228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E-3 (M1 Bradley Fighting Vehicle Operator) medically separated for right lower extremity (RLE) pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The RLE condition, characterized as “right femoral neck fracture, s/p femoral neck percutaneous pinning,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “right lower extremity pain status post right femoral neck fracture,” as unfitting, rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI did not appeal and was medically separated.

CI CONTENTION:  “Chronic bursitis of right femoral neck diminishing range of motion condition of right hip causing right foot deterioration and pain, which requires use of prosthetic on right foot.  “Illegible” is s/c, drug dependence, loss of creative organ as a result of medication (pain) tinnitus/hearing loss.  Please consider all conditions.”

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:

IPEB – Dated 20041108	VA* - (~2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Lower Extremity Pain	5099-5003	10%	Right Femoral Neck Fracture s/p Percutaneous Screw Fixation	5255	20%	20041021**	
Other x 0 (Not In Scope)	Other x 1	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20050113 (most proximate to date of separation [DOS]).  **C&P Exam Missing.

ANALYSIS SUMMARY:  

Right Lower Extremity (LE) Pain Condition.  The narrative summary notes that the CI sustained a slightly displaced fracture of the right femoral neck during basic combat training.  He underwent percutaneous pinning 16 June 2004 without complications.

At the MEB examination on 28 July 2004, 5 months prior to separation, the CI was still on crutches following his surgical procedure per protocol.  The MEB physical exam noted a well healed surgical scar and normal exam of the right LE.  Right hip range-of-motion (ROM) was flexion of 110 degrees (normal 125), external rotation of 15 degrees (normal 45) and abduction of 45 degrees (normal 45).  There was minimal tenderness with heel-tap (fracture related) and the CI could perform straight leg raise.  Hip X-rays noted evidence of healing at the fracture site, with good alignment, and three intact surgical screws.  The MEB examiner indicated that it was unlikely the CI would be able to continue in the military due to his injury and surgery.  The PEB requested updated information on 18 October 2004 and the undated response by the MEB examiner indicated that the CI’s ROM had not changed and that he was able to ambulate without crutches, but had persistent pain.

The 13 January 2005 VA Rating Decision cited a 21 October 2004 VA exam.  The CI was noted to have persistent pain of the hip, and was unable to run, march, or perform heavy lifting.  The exam noted a normal gait with right hip ROM of flexion of 110 degrees, external rotation of 45 degrees, and abduction of 40 degrees with painful motion, and adduction of 25 degrees (normal 45).  There was no additional limitation of ROM with repetition.  Hip X-rays were reported as normal, except for the surgical hardware.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the right LE condition 10%, coded 5099-5003 and cited the USAPDA pain policy and the VA rated it 20%, coded 5255 (impairment of the femur) for malunion with moderate hip disability.  The Board agreed that the evidence in record supports a 10% rating of the right LE condition coded as 5252 (limited thigh flexion) IAW §4.59 (Painful motion).  The Board reviewed to see if a higher evaluation was achieved with any other applicable code, but there was no evidence of limited flexion or extension based on ROM alone, abduction limited to 10 degrees or less, or ankyloses to provide a higher evaluation with codes 5251 (limited leg extension, 5252 (limited leg flexion), 5253 (thigh impairment), or 5252 (ankylosis).  The Board next considered if a higher rating was supported by the VA coding choice of 5255.  The 5255 rating criteria are subjective with 10% for slight, and 20% for moderate hip disability due to femur impairment.  The Board agreed that the CI’s disability due to the femur fracture was best characterized as slight and not moderate based upon the presence of a normal gait and mildly limited ROM at the C&P exam.  The C&P exam was the most proximate exam to separation and supported that there was improvement between the MEB exam, performed 6 weeks after surgery, and the C&P exam, performed 4 months after surgery, following the post-operative convalescence period.  Therefore, the Board concluded that the evidence did not support a higher evaluation than 10% with any coding approach.  The Board noted that the PEB’s reliance on the USAPDA pain policy was not detrimental to arriving at the highest rating and therefore no change to the PEB’s choice of code is recommended.  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 adjudication for 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the right LE condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the right LE condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.

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 20140513, 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, AR20150015574 (PD201402648)

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