RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02760
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20050601

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Air Defense Command and Control Operator) medically separated for a right hip pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “right hip pain post femoral neck fracture” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (low back pain, bilateral knee pain, and chronic bilateral calcaneal pain) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the right hip condition 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:  The applicant has asked for consideration of all conditions 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 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 20050426	VA* - (~9 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Status Post Femoral Neck Stress Fracture…	5099-5003	10%	Fracture, Right Hip Postoperative	5299-5255	10%	20060224	
			Scar, Right Lateral Hip/Thigh	7804	10%	20060224	
Low Back Pain	Not Unfitting	Back Condition	NSC	20060224	
Bilateral Knee Pain	Not Unfitting	Bilateral Knee Chronic Strain	5260-5024	0%	20060224	
Chronic Bilateral Calcaneal Pain	Not Unfitting	Right Calcaneal Chronic Strain	5099-5014	10%	20060224	
		Left Calcaneal Chronic Strain	5099-5014	10%	20060224	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20060419 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:    

Right Hip Condition.  The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of an initial fracture of the right hip (femoral neck) in May 2001 (fall with 80 pound ruck).  The CI underwent surgical intervention (percutaneous pinning) and was medically boarded and separated; but, was allowed to reenlist in April 2003 with a medical waiver for the hip.  Progressive hip pain began early during this enlistment and was diagnosed as trochanteric bursitis.  In June 2004 (12 months prior to separation) the pins were removed in an effort to relieve symptoms.  This was unsuccessful and resulted in MEB referral in October 2004.  Earlier STR entries from the second enlistment indicate the ability to complete physical fitness testing and runs, but with worsening pain afterwards.  A range-of-motion (ROM) entry from that period records flexion to 110 degrees (normal 125, minimum compensable 45) and external rotation of 45 degrees (normal 45, minimum compensable 15) with painful motion and a normal gait.  The few available outpatient STR entries from the 12-month interval between the surgical pin extraction and separation document the failure to respond to joint injections and an orthopedic opinion that further surgical intervention was not indicated, but did not provide any specific exam evidence probative to rating.  There are no STR entries indicating more severe functional limitations, conflicting ROM observations, joint impingement, malalignment, or periods of incapacitation.  Imaging (X-ray and MRI) demonstrated expected surgical changes and mild degenerative changes, but a healed and normally aligned fracture.

The NARSUM was conducted 12 January 2005 (approximately 5 months prior to separation) and was supplemented by a preceding “administrative return summary” dated 4 October 2004.  The NARSUM rated the hip pain as “marked/constant” and noted exacerbation by “prolonged standing, ambulation, or with attempts at running, jumping, marching, bending or lifting-type activities.”  The NARSUM physical examination recorded antalgic gait with use of a cane, a healed scar without abnormal (ratable) scar findings, and lateral joint tenderness.  It provided passive ROM measurements of flexion to 95 degrees, extension to 30 degrees (normal 20, minimum compensable 5), and external rotation to 20 degrees; annotating painful motion.  The addended summary (from 4 months earlier as cited above) noted “a significant amount of pain, which is keeping him from doing his job,” recorded a “notable antalgic gait,” and documented ROM (assumed active, but not specified) of “he can flex and extend fully” with external rotation to 35 degrees.  

A VA Compensation and Pension (C&P) examination was conducted 24 February 2006 (9 months after separation) and documented constant moderately severe (seven on Manakowski scale) hip pain.  The only functional limitations elaborated were difficulties with getting on trousers and an absolute limit of one mile of ambulation with use of a cane.  It documented that the CI was a “stay at home Dad” caring for three children.  The VA physical examination recorded antalgic gait (cane) and surgical scar (but not joint) tenderness.  The VA measured ROM was flexion 110 degrees, extension 0 degrees (10% compensable), and external rotation 30 degrees; annotating painful motion.

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 supported by the USAPDA pain policy, but was consistent with VASRD §4.71a criteria for the MEB ratable findings and ROM evidence.  Although the VA listed code was analogous to 5255 (femur, impairment of), its 10% rating cited the limited extension from the C&P which would be properly coded 5251, raising the question of a typographical error.    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 which offers ratings for contiguous hip disability: 20% for “moderate” and 30% for “marked.”  Members agreed that analogous application of 5255 was supported in this case by VASRD §4.7 (higher of two evaluations), in light of the fairly significant functional disability in evidence and noting that it involved a fracture (as rated under 5255).  Although the fracture complications (nonunion, malunion) specifically cited by 5255 are not in evidence, analogous rating under the code is justified IAW VASRD §4.20 (analogous ratings).  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 rating 20%, coded 5255.  A 30% recommendation for “marked” disability via this route was entertained, but members agreed that the intact functioning remained considerable and did not reasonably support that rating.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends rating 20% rating, coded 5299-5255 for the right hip condition. 

Contended PEB Conditions (Lumbar, Bilateral Knee, Bilateral Calcaneal).  There are no active clinical STR entries for any of these conditions during the MEB period (or from available earlier STR entries).  The NARSUM listed “chronic low back pain” without elaboration under past history, and was silent regarding the knee or calcaneal conditions; but, all three conditions were forwarded as meeting AR 40-501 retention standards on the MEB’s DA Form 3947.  The VA C&P examiner documented that the CI “really doesn’t have pain in the lower back at all ... kind of comes from his hip and goes to his buttock towards his back.”  A history of bilateral knee pain was dated to 2003 and ascribed to physical training.  A history of calcaneal pain was attributed to a 2001 bone scan demonstrating stress fractures of the heels.  The commander’s performance statement did not implicate any specific diagnosis and elaborated only profile limitations.  No condition was profiled throughout service except the hip condition.

The Board directed attention to its recommendations based on the above evidence; and, its main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they were not unfitting.  The Board’s threshold for countering Service fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  All members agreed that there was no performance based evidence suggesting that any of the above conditions, in and of themselves, significantly interfered with duty performance.  Furthermore, all of the contended conditions were subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  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 any of these condition; thus, none of them can be recommended for additional Service disability rating. 

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 Service disability rating of 20%, coded 5299-5255, IAW VASRD §4.71a.  In the matter of the lumbar, bilateral knee, and bilateral calcaneal 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Surgical Residuals, Right Hip Fracture 	5299-5255	20%	
Chronic Low Back Pain	Not Unfitting	
Chronic Bilateral Knee Pain	Not Unfitting	
Chronic Bilateral Calcaneal Pain	Not Unfitting	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140609, 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, AR20160003755 (PD201402760)

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