RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02721
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20030430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3, Infantryman, medically separated for hip condition.  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 “right hip pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (“left foot pain” and “low back pain”) for PEB adjudication.  The Informal PEB adjudicated “chronic pain, right hip” as unfitting, rated 10%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  “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 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 20030304	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Hip…	5099-5003	10%	Right Hip,…Femoral Head 	5299-5252	10%	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20030528 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Chronic Pain, Right Hip Condition.  The narrative summary (NARSUM) noted the CI developed right hip pain without specific trauma in approximately June 2001, 4 months after entering active duty.  Right hip X-rays and magnetic resonance imaging demonstrated a large benign bony tumor of the proximal femur and an associated stress fracture.  The CI was evaluated by two orthopedic specialists and both diagnosed fibrous dysplasia (a tumor present since childhood).  Both specialists recommended percutaneous pinning of the fracture, which the CI underwent 31 May 2002.  Following the surgery, the hip pain did improve initially, and the CI was noted to have a normal gait and be able to walk without pain, but eventually the CI reported increased right hip pain.  Repeat X-rays were unchanged and noted surgical hardware in good position.  The CI was referred to a pain specialist and hip degenerative joint disease was diagnosed and the CI was treated with pain medications and a cane.  Pain medications were helpful, but the CI was unable to return to full duty due to the hip pain and was given a P3 profile and an MEB was initiated.  The DD Form 2808, Report of Medical Examination, 15 January 2003, 4 months before separation, noted decreased right hip ROM without tenderness to palpation.  At the MEB exam 11 February 2003, 3 months before separation the CI reported right hip pain with difficulty walking and aggravated by all weight bearing activities.  The MEB physical exam noted right hip range-of-motion (ROM) of flexion 100 degrees (normal 125) and external rotation 60 degrees (normal 45).  The examiner noted normal alignment and movement of the hip and sensation and pulses of the lower extremity (LE) were normal.  

The original VARD was based on service medical records.  At the VA Compensation and Pension General exam on 1 July 2003, 2 months after separation, the CI reported right hip pain.  The exam noted the CI walked with a limp favoring the right.  Strength, sensation, reflexes, and pulses of the LE were normal.  The VA C&P Joints exam the same day noted the CI was able to walk unaided, but occasionally used a forearm crutch.  The exam described right hip ROM as “good flexion and extension, internal and external rotation, although slightly painful.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the hip condition 10%.  The PEB coded 5099-5003 and cited the USAPDA pain policy and the VA coded 5299-5252 (analogous to limited thigh flexion).  The Board agreed that the evidence supports a 10% rating for the hip, coded either according to 5003 criteria for pathology of a single major joint with limited motion or coded as 5299-5252 for painful motion IAW VASRD §4.59 (Painful motion).  The Board reviewed to see if a higher evaluation was supported by any applicable code.  There was no evidence of hip ankylosis or limited ROM sufficient to support a 20% rating based on limited flexion or abduction and 10% rating is the highest rating available with 5003 or the similarly rated codes for a single joint.  The Board next deliberated if coding the hip condition as analogous to femur impairment (5299-5255) was warranted in this case.  The CI had a large benign fibrous tumor of the femur, which was associated with a stress fracture (fx).  However, the Board noted that the orthopedic specialist indicated that the benign bone growth had been present for a long period without symptoms until the stress fx occurred.  The fx was surgically pinned and there was residual pain, but there was no evidence of hip joint laxity or mal-alignment.  The Board also noted that according to the VASRD, benign bone growths (5015) are rated according to 5003 rating criteria as already discussed.  Therefore, the Board abandoned this rating approach and determined that the evidence supports a 10% rating for the hip condition and no higher.  The Board also noted that the PEB’s reliance on the USAPDA pain policy for rating was not detrimental to arriving at the highest rating and that coding with 5003 criteria and rating 10% is VASRD compliant and therefore no change to the PEB coding choice is recommended.  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 condition  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left foot pain and low back pain conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

Left foot condition.  The NARSUM noted that the CI had left foot pain that was treated by podiatry with shoe inserts and local treatment.  Scant notes in the service treatment record indicated the CI reported left foot pain for a month 2 January 2002, increased by using crutches or extending his toes and indicated the pain decreased after a period of walking.  A podiatry note 6 March 2002 noted mid-foot pain with exertion and a second note 24 April 2002 noted the same pain, but the plan was illegible to the Board.  A primary care note 3 May 2002 noted hip and left foot pain and a “boney overgrowth” in the left foot.  A pain specialist evaluation 18 October 2002 noted right hip, left knee, and left foot pain.  The exam noted a foot osteophyte (degenerative bone growth).  The DD Form 2808, Report of Medical Examination, 15 January 2003 noted no visible deformity of the left foot and there was tenderness of the fourth and fifth MTs.  A podiatry note 27 January 2003 noted hypermobility at the first metatarsal-mid-foot joint (MT-cuneiform joint) and plan was to inject the joint.  

Low back condition.  The NARSUM noted the CI reported back pain secondary to altered gait from his hip problem.  A pain specialist evaluation 18 October 2002 noted right hip, left knee, and left foot pain.  The exam noted tenderness, but did not specify the location and normal ROM throughout with negative straight leg raise testing.  A follow-up PM note indicated the CI was much improved after an epidural steroid injection (ESI) and pain medications were helpful.  The diagnoses listed degenerative joint disease of the hip and low back pain.  

The left foot pain and low back pain conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   All were reviewed and considered by the Board.   There was no performance based evidence from the record that either of these conditions 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 either of the contended conditions and so no additional disability ratings are 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the right hip was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the right hip condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left foot pain and low back pain conditions, the Board unanimously recommends no change from the PEB determinations 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 20140603, 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, AR2016003749 (PD201402721)

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