RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03257
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20071001

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Radiology Technician) medically separated for “bilateral hip and ankle pain,” “chronic low back pain” and “bilateral retropatellar pain syndrome” as unfitting, rated 10%, 0% and 0%, respectively.  

CI CONTENTION:  The CI requests the Board consider all conditions.  Her 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 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 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 20070815	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Hip and Ankle Pain	5099-5003	10%	Left Hip	5255	NSC	20071231	
			Right Hip	5255	NSC	20071231	
Low Back Pain	5235	0%	Residuals of Right Transverse Process w/Chronic Right Paravertebral Muscle Strain	5235	10%	20071231	
Bilateral Retropatellar Pain	5099-5003	0%	Patellofemoral Syndrome, R Knee	5261	10%	20071231	
			Patellofemoral Syndrome, L Knee	6251	10%	20071231	
Major Depression	Not Unfitting	Bipolar Disorder	9432	30%	20071231	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5 	
COMBINED RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20080131 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The PEB adjudicated the left hip, right hip, left ankle and right ankle conditions as a single unfitting condition characterized as bilateral hip and ankle pain, rated 10%, coded 5099-5003 (analogous to arthritis) and cited the USAPDA pain policy.  The PEB also combined the left and right knee as a single unfitting condition characterized as bilateral retropatellar pain rated 0%, coded 5099-5003 and cited AR 635-40.  The PEB relied on AR 635.40 and/or the USAPDA pain policy for not applying separate compensable VASRD codes.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD rating guidelines.  If the Board judges that two or more separate ratings are warranted in such cases, it must first satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself.  Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not result in a lower combined rating than that of the PEB.

Bilateral Hip and Ankle Pain Condition.  The narrative summary (NARSUM) notes the CI reported constant bilateral hip pain and ankle pain, aggravated by activity and weather, and improved by rest.  The CI reported ankle swelling, without instability.  There was no history of specific trauma to either hip or ankle.  Scant notes in the service treatment record (STR) regarding the hips and ankles indicated the CI reported pain of the bilateral hips.  An Orthopedic evaluation on 19 April 2006 noted the reason for the appointment was “pain from hips to ankles.”  Bilateral hip and ankle X-rays on 19 April 2006 were normal, but the X-ray request noted ‘popping’ of the left hip when changing positions.  The Orthopedic exam noted tenderness to palpation (TTP) of the outside of the hips (greater trochanters) and also of the muscles of the anterior and posterior thighs, but no abnormaity of the ankles.  A bone scan on 24 April 2006 noted no abnormalities of the pelvis, hips, knees, ankles, or upper or lower leg bones.  The assessment noted hip joint pain with no mention of any ankle condition.  A primary care visit on 27 June 2006 noted that the pain of the outside of the hips was better after aquatherapy, but a PC visit on 26 September 2006 indicated the CI needed a permanent profile for the back, hips and knees.  The CI was referred to rheumatology for evaluation of multiple joint pains, specifically the bilateral hips and knees.  The Rheumatology exam on 21 March 2007 noted no abnormalities of any peripheral joints.  The Rheumatologist noted no evidence of an inflammatory arthritis or “any significant joint abnormality.”  

At the MEB exam on 9 May 2007, 5 months before separation, the CI reported constant pain in the hips and ankles, equal bilaterally.  The MEB physical exam noted an antalgic gait favoring the right.  There was full range-of-motion (ROM) of the hips, with pain into the groin with motion.  There was diffuse TTP over the top of the pelvis (iliac crest).  Specific testing for hip joint pain was negative (Faber test) and no swelling was noted.  On exam of the ankles there was TTP of the ligaments on the outer aspect of the ankle with full ROM, with minimal swelling and no instability.  There was no TTP of the joint lines or pain with squeezing of the foot (metatarsalgia).  

At the VA Compensation and Pension (C&P) exam on 31 December 2007, 3 months after separation, the CI reported intermittent bilateral posterior hip pain, which occurred twice a week, lasting for a few hours, aggravated by prolonged sitting or weight bearing activities.  She reported swelling and a ‘popping’ sensation of the hip, use of a cane with flare-ups, and improvement with rest, anti-inflammatory medication, and massages.  She denied any relationship of her back pain (discussed below) to her hip pain.  She also reported intermittent bilateral ankle pain with swelling and flare-ups of the pain associated with flare-ups of the hips and knees, but the ankle pain was “not as bad as my knees and hips.”  The C&P examiner noted that the CI reported bilateral ankle pain during the MEB, but had not been diagnosed with any specific condition involving the ankles.  The exam noted normal posture and gait.  There was full hip ROM with reported pain of the gluteus and right lumbar muscles with end range of hip flexion.  The examiner noted no specific report of hip joint pain with ROM and there was no TTP, swelling, or instability of the hip joint and there was no pain, weakness, fatigue or incoordination noted after three repetitions of ROM.  A full neurological evaluation was normal.  Ankle exam noted full ROM without evidence of painful motion, weakness, fatigue or incoordination after three repetitions of ROM and no instability was noted.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated bilateral hip and ankle pain 10%, coded 5099-5003, and cited the USAPDA pain policy.  The VA did not service connect the right or left hip, noting that the STR indicated a history of hip pain without a clear cause and the C&P exam did not diagnosis any current condition of the right or left hips.  Under a claim for “arthralgias” the VA Rating decision noted that the CI had been seen for pain in the hips and ankles and had not been diagnosed with a specific condition of either ankle, or a systemic inflammatory disease such as rheumatoid arthritis or lupus.  The Board considered if the evidence reasonably supported that the right and left hip and right and left ankle conditions remained reasonably justified as unfitting when separated from the PEB’s combined adjudication.  The Board noted that the permanent profile listed bilateral hip and ankle pain and the commander’s statement specifically mentioned bilateral hip…and ankle pain.  However, the Board found that there was only one treatment note in the STR which actually mentioned the ankles.  The orthopedic evaluation in April 2006 noted pain “from hips to ankles,” with no mention of an ankle condition in the assessment.  There were no objective abnormal findings of either ankle noted at the orthopedic exam, or any other exam in the record.  Therefore, members concluded that the evidence did not support that either ankle or both ankles combined were reasonably justified as unfitting when separated from the hip conditions.  The Board next considered if one or both hips were reasonably justified as unfitting when separated from the combined adjudication.  There were multiple visits noted for bilateral hip pain with TTP and no differences noted between them.  Therefore, the Board agreed that the evidence supports that both hips were reasonably justified as unfitting.  The Board noted that at the MEB and C&P exams, the ROM of both hips was normal, with no painful joint motion noted and therefore agreed that neither hip met the minimum 10% rating based on painful or limited ROM.  The Board then considered coding option 5099-5024 (tenosynovitis). VASRD code 5024 is rated based on limitation of motion and in the absence of limitation of motion a 10% rating is applicable with involvement of 2 or more major joints.  The Board further reviewed to see if a higher evaluation was supported using any other code, but there was no evidence of hip joint ankylosis, flail hip joint, or impairment of the femur for a higher rating.  Therefore, the Board determined that the evidence supports a 10% rating for the bilateral hips, and no higher, including with consideration of functional loss.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59, the Board recommends a disability rating of 10% for the bilateral hip condition, coded 5099-5024.  

Low Back Condition.  The narrative summary (NARSUM) noted the CI reported intermittent low back pain (LBP) for the past year, aggravated by activity and relieved by rest.  Notes in the STR indicated that the CI was assaulted on 21 January 2006 and was seen in the emergency room with LBP.  Initial X-rays of the thoracic and lumbar spines showed no fracture.  A bone scan on 24 April 2006, performed to evaluate multiple joint pains, showed increased uptake of the transverse processes of the L2 and L3 vertebrae and a healing fracture of the L3 transverse process was confirmed on a computed tomography (CT) scan.  At the Rheumatology evaluation in March 2007 previously noted, there was diffuse TTP of the upper and lower back soft tissues and no specific diagnosis was determined.  

At the MEB exam on 9 May 2007 (5 months before separation) the CI reported LBP, without radiation or neurological symptoms.  The MEB physical exam noted full ROM of the lumbar spine, with diffuse TTP of the spine and surrounding soft tissues, without muscle spasm.  Straight leg raise (SLR) testing and testing for sacroiliac joint pain was negative.  

At the VA Compensation and Pension (C&P) exam on 31 December 2007 (3 months after separation) the CI reported persistent intermittent LBP located along the lower back on the right, associated with sudden episodes of muscle spasm and occasional shooting pain to the right buttock area, without lower extremity (LE) weakness or numbness/tingling.  The CI reported that rest and anti-inflammatory medication were helpful for the attacks and “she was given 48 hours of bed rest by the treating physician at least five times” during her last year in the military.  The CI noted that periodic use of a cane was related to her hips and knees, but not her back.  On exam there was normal gait and posture.  There was full ROM of the thoracolumbar (TL) spine, with pain and TTP on the right, with right lateral flexion.  Testing for SI pain was negative and SLR testing was negative bilaterally.  The CI was able to heel and toe walk without difficulty and LE strength, sensation, and reflexes were normal.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both coded the low back condition 5235 (vertebral fracture).  The PEB rated the low back condition 0% and the VA rated it 10%.  The Board agreed that the evidence supports a 10% rating according to current VASRD rules for rating the spine in effect on the date of separation for “tenderness not resulting in an abnormal gait or an abnormal spinal contour.”  The Board reviewed to see if a higher evaluation was achieved but there was no evidence of flexion of the TL spine of “greater than 30 degrees but not greater than 60 degrees”, a combined TL ROM “less than 120 degrees”, or “muscle spasm or guarding severe enough to result in an abnormal gait or an abnormal spinal contour” for the next higher evaluation of 20%.  Although the CI was noted to have a limp at the MEB exam, her gait was normal at the C&P exam and she noted that she used a cane periodically due to flare-ups of her hip and knee conditions, but not her back condition.  The Board also considered if coding analogous to 5243 and rating based on incapacitating episodes defined by the VASRD as “a period of…symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician” provided a higher rating.  At the C&P exam, the CI reported at least five episodes of quarters of 48 hours duration in the year before separation.  There were only three episodes of quarters for back pain in record, with total duration of 4 days.  The Board can only make its recommendations based on the evidence in record, but notes that even considering the total duration of incapacitating episodes to be closer to 10 days as reported by the CI, a 20% rating requires incapacitating episodes of “at least 2 weeks” duration.  Members agreed that the evidence supports a 10% rating for the back condition and no higher, including consideration of VASRD §4.40 (Functional loss).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.40, the Board recommends a disability rating of 10% for the low back condition.  

Bilateral Retropatellar Pain Syndrome (RPPS).  The narrative summary (NARSUM) notes the CI had a 2-year history of bilateral knee pain.  Notes in the STR indicate the CI was diagnosed with RPPS and physical therapy did not provide relief.  Bilateral knee X-rays on 24 February 2006 were normal.  An MRI request noted right greater than left knee pain, with recurrent effusions of the right knee and the MRI on 17 March 2006 noted a possible meniscus tears.  Orthopedic evaluation on 19 April 2006 noted the reason for the visit was “pain from hips to ankles.”  On exam there was TTP of soft tissues on the outside of the right knee.  A bone scan was ordered and as noted above, noted no abnormalities of the pelvis or bilateral LEs.  The orthopedic specialist recommended follow-up with Primary Care for evaluation of possible fibromyalgia tender points.  A Primary Care visit on 26 September 2006 indicated the CI needed a permanent profile for the back, hips and knees.  At the Rheumatology evaluation in March 2007, the CI reported right knee pain which she related to injury 2 years earlier.  The examiner indicated a second MRI of the right knee was recently performed and did not show any meniscus tears.  The Rheumatologist noted that the CI reported “diffuse joint and muscle pains really throughout her entire body”, but did not have any other signs or symptoms of a systemic connective tissue disease and the exam did not find any abnormality of any joints, as previously noted.

At the MEB exam on 9 May 2007 (5 months before separation) the CI reported constant knee pain, aggravated by activity, without ‘locking’ or instability.  The MEB physical exam noted an antalgic gait, favoring the right.  The exam of the bilateral knees noted diffuse TTP of the knees with mild crepitus and positive patellar grind test.  There was no soft tissue swelling, effusions, or evidence of instability.

At the VA Compensation and Pension (C&P) exam, performed 31 December 2007 (3 months after separation) the CI reported intermittent bilateral knee pain, with mild swelling.  She denied “giving out or locking up.” She reported flare-ups due to activity, a few times per week to daily, for a few hours, improved by rest, medication, ice and heat.  She reported use of a cane with flare-ups.  The exam noted full knee ROM bilaterally with pain at end range of flexion.  There was TTP of the knee and crepitus with ROM, without swelling or instability.

The Board directed its attention to its rating recommendation based on the above evidence.   The PEB rated the bilateral knees 0%, coded 5099-5003 (rated analogously to degenerative arthritis) and cited AR 635-40 appendix B-29 and the VASRD.  The VA rated the right and left knee 10% each, coded 5261 (limited leg extension) for painful motion.  The Board first considered if the evidence reasonably supports that the right and left knee conditions remained reasonably justified as unfitting when separated from the PEB’s combined adjudication.  The permanent profile lists the bilateral knees.  The commander’s statement implicates both knees as impairing the CI’s duty performance.  Both knees were addressed at treatment visits in the STR and there were abnormal findings of both knees on exam.  Members agreed that the evidence supports that both the left and right knee conditions were reasonably justified as separately unfitting and are therefore eligible for individual ratings.  The Board noted that the physical exam at the MEB and C&P exams was identical for both knees.  Thus, Members agreed that the evidence supports a 10% rating for each knee, coded 5299-5261 (analogous to limited leg extension), an analogous code for RPPS, IAW §4.59.  The Board reviewed to see if a higher evaluation was possible, but there was no evidence to support a higher rating based on limited ROM alone, or evidence of instability, cartilage related symptoms, impairment of the tibia or fibula, or knee ankyloses for a rating higher than 10% for either knee.  The Board determined that the evidence supports no higher than a combined 20% rating for the knees, including consideration of VASRD §4.40.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.40, the Board recommends a disability rating of 10% for the unfitting left knee and 10% for the unfitting right knee, both coded 5299-5261.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the major depression condition was 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.  

Major Depression Condition.  There were no notes in the STR regarding mental health (MH) evaluation or treatment prior to the MEB MH NARSUM.  The MH NARSUM dated 5 June 2007 noted that the CI had a psychiatric hospitalization in March 2007 for severe depression with psychotic features.  The CI reported that at a prior duty station she was harassed.  The CI was subsequently transferred and reported that she was also singled out and treated badly at her new duty station.  The CI reported she could not trust anyone, had trouble sleeping, and was not eating.  She reported hearing voices and seeing people that weren’t there, which led to hospitalization and MH diagnosis noted above.  Following discharge the CI participated in an intensive outpatient psychiatric treatment program (IOP).  The CI was on multiple psychotropic medications.  According to the MH NARSUM the CI responded well to medication and therapy.  There was no past history of a MH diagnosis or treatment and the CI denied any substance abuse.  Since her hospitalization, the CI reported enjoying time with her children and that she had recently volunteered to teach Sunday school, which went well.  The mental status examination (MSE) noted the CI was well groomed and had a full range affect, but was “appropriately tearful” during the interview.  The CI reported being unable to trust “people in uniform” and was fearful she would be “set up again.”  She reported still occasionally hearing a voice calling her name, which she believed was her trying to calm herself, and had heard a voice while in the waiting room.  The MH examiner noted no current delusion and indicated cognition and judgment were intact.  The Axis I diagnosis was major depression-severe, with mood congruent psychotic features, in remission, with a global assessment of functioning (GAF) of 55 (moderate impairment range).  The MEB psychiatrist noted that the CI’s severe depression was “now resolving and improving.  All though at this point she is better, she is not fully recovered from the episode, she is gradually doing better and I would anticipate further improvements…” Final recommendations/conclusions stated the CI was “medically acceptable” with regard to her MH condition.  The CI wrote a letter of rebuttal to the MEB and indicated she had been hospitalized three times (twice in close proximity before the MEB and once after it).  A letter from the CI’s treating psychiatrist 26 July 2007 corroborated that the CI had been hospitalized three times.  The CI’s current Axis I diagnosis was noted as Bipolar disorder I, most recent episode mixed, with psychotic features and post traumatic stress disorder, with a GAF of 56 (moderate impairment range).  

The Board noted that the CI was diagnosed with major depression by the MEB psychiatrist and with Bipolar disorder I and PTSD (non-Service related) by her treating psychiatrist.  According to VASRD rules for rating MH impairment, only one rating may be provided for MH disability based on total occupational and social functioning (excluding eating disorders), regardless of specific MH diagnosis.  Therefore, the differences between the MH diagnoses conferred between providers in the STR is a moot issue for the Board’s recommendations regarding fitness and attendant disability rating, if indicated.  The Board first deliberated the fitness of the MH condition and considered at length the CI’s psychiatric hospitalizations proximate to the MEB.  The CI was a psychiatric inpatient twice in March 2007 and both the commander’s statement and the MH NARSUM occurred after the hospitalizations.  The commander’s statement 14 May 2007 did not implicate any MH symptoms or conditions as impairing the CI’s duty performance and noted that aside from the CI’s physical limitations due to the back and bilateral hip, knee, and ankle conditions, “she performs well at her job to the best of her ability.”  The MH NARSUM indicated that despite some residual symptoms, the CI met retention standards.  There was no performance based evidence in record that a MH condition or MH symptoms significantly impaired the CI’s duty performance.  The MH condition was not permanently profiled.  The Board considered that, as noted above in the discussion of the musculoskeletal conditions, the CI was seeking and/or being considered for a permanent profile for the back, hip, and knee conditions in September 2006.  The Board acknowledges the evidence that the CI began to experience worsening MH symptoms in March 2007, but this appears to have occurred during the disability evaluation process for the musculoskeletal conditions.  The Board surmised from the evidence in record that there was adequate performance of duty relative to the MH condition until the time the CI was referred for an MEB due to the musculoskeletal conditions.  Therefore, IAW DoDI 1332.38 E3.P3.3.3 Adequate Performance Until Referral, a finding of fit for duty is supported, even though the evidence may indicate questionable 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 the MH condition and so no additional disability rating is 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 and/or AR 635-40 for rating the back, knees, and hips and ankles was operant in this case and the conditions were adjudicated independently of that policy and/or Army regulation by this Board.  In the matter of the bilateral hip and ankle pain condition, the Board unanimously recommends the bilateral hips unfitting, rated 10%, coded 5099-5024 IAW VASRD §4.71a.  The Board unanimously determined the right and left ankles were not unfitting and therefore not rated.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 10%, coded 5235 IAW VASRD §4.71a.  In the matter of the bilateral knee condition, the Board unanimously recommends each knee as unfitting, rated 10% each, both coded 5299-5261 IAW VASRD §4.71a.  In the matter of the contended MH condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Bilateral Hip Pain Condition	5099-5024	10%	
Chronic Low Back Pain Condition	5235	10%	
Right Retropatellar Pain Syndrome	5299-5261	10%	
Left Retropatellar Pain Syndrome	5299-5261	10%	
COMBINED (w/ BLF)	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140625, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160004423,  XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs
and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,·

Enclosure