RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03644
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050910

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E6, Cavalry Scout, medically separated for “non- radicular low back pain, w/o significant neurologic abnormality,” and “bilateral hip pain,” rated 10% and 0% respectively, with a combined disability rating of 10%.  

CI CONTENTION:  The CI submitted a twelve page legal brief with his application.  The CI’s complete submission, with attachments, 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 based upon a 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 - 20050720	VARD - 20060427	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Non Radicular Low Back Pain	5299-5237	10%	Lumbosacral Strain with Degenerative Arthritis	5242	10%	20060315	
Bilateral Hip Pain	5099-5003	0%	Right Hip, Ligamentous Laxity Following Shrapnel Injury	5299-5255	20%	20060313	
			Left Hip, Ligamentous Laxity	5299-5255	10%	20060315	
Mood Disorder 	Not Unfitting	Post-Traumatic Stress Disorder	9411	30%	20060313	
PTSD	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Non Radicular Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in in approximately 2000 without specific trauma.  Diagnostic imaging (lumbar MRI) in November 2004 showed a bulging disk at L4-5 which indented the thecal sac, but did not result in canal stenosis or nerve impingement.  A thoracic MRI in April 2004 was normal.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  Electrodiagnostic testing (EMG) in December 2005 showed slight (4+/5 with normal 5/5) strength and patchy sensation in all limbs, with normal gait, reflexes, and lower extremity nerve conduction testing.  The diagnosis was “minor myopathic changes.”  Muscle biopsy was normal.  The MEB forwarded “non-radicular low back pain” for PEB adjudication.  

At the MEB examination dated 6 January 2005, 8 months prior to separation, the CI reported back pain not relieved by chiropractic, injections or medication.  He was being evaluated by neurology and pain subspecialists for back pain and systemic fatigue and weakness.  Physical examination showed the spine was tenderness to palpation with weakness (motor 4/5) in the bilateral lower extremities.  

The MEB NARSUM examination on 12 May 2005, 4 months prior to separation, noted complaints of thoracic and lumbar back pain.  Physical examination showed pain-limited range of motion (ROM) of forward flexion to 65 degrees (normal 90) and combined ROM of 150 degrees (normal 240).  The CI could toe walk and heel walk and there was no lower extremity gross weakness or reported numbness.  Provocative testing for radicular symptoms was negative.  

At the 15 March 2006 VA Compensation and Pension (C&P) evaluation, performed 6 months after separation, the CI reported continued back pain and use of an electrical stimulation unit (TENS) with flare-ups to 8/10 daily.  He occasionally wore a non-prescribed back brace.  X-ray of the lumbosacral spine showed degenerative changes.  Physical exam showed the CI walked with an antalgic gait attributed to the right hip (see below).  There was thoracic scoliosis with tenderness and slight muscle spasm.  ROM was flexion of 65 degrees and combined 205 degrees.  The examiner stated that there was no muscle spasm or guarding sufficient to affect the CI’s gait.  Lower extremity neurologic and reflex examinations were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5299-5237 (lumbosacral strain), citing tenderness and ROM limited by pain.  The VA also rated the low back condition 10% coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination 6 months after separation, citing ROM criteria.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on all examinations proximate to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  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 non-radicular low back pain condition.  

Bilateral Hip Pain.  According to the STR and MEB NARSUM, the CI’s bilateral hip pain condition began without any specific trauma.  The CI had a shrapnel injury in March 2003.  A pelvic X-ray in February 2004 showed a punctate metallic density over the right obturator foramen (tight groin area outside of the hip joint).  He developed general muscle weakness and tenderness, muscle fatigue and aching as described above.  Muscle testing indicated minor myopathic changes with a normal muscle biopsy (see EMG above).  Despite treatment, the bilateral hip pain condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “internal snapping of both hips,” for PEB adjudication.  

At the MEB examination the CI reported shrapnel in his right hip, numbness and tingling in the lower extremities, and lower extremity weakness.  He was taking Neurontin for nerve pain.  Physical examination showed weakness (motor 4/5) in the bilateral lower extremities.  The MEB NARSUM examination on 12 May 2005, 4 months prior to separation, noted complaints of bilateral hip and groin pain including the lateral proximal thigh and the superior buttocks area.  He indicated that his hip pain was associated with popping of his hip and pain increased with sit-ups or flutter kicks.  There was no reported numbness in the lower extremities.  Physical examination showed there was an audible/palpable pop in the right groin with motion and the examiner did not appreciate a pop on the left hip/groin, although the CI subjectively felt a pop.  ROMs are summarized below.  There was equal active and passive ROMs except for right hip passive flexion being 10 degrees greater than active motion.  There was no gross weakness noted in the lower extremities.  

At the 15 March 2006 VA Compensation and Pension (C&P) evaluation, performed 6 months after separation, the CI reported pain and popping in both hips limiting bending, lifting, walking and weight bearing.  He had a feeling of giving way with occasional locking, and fatigability of the hip joints.  Hip X-rays were normal (no acute bony changes).  Physical exam showed “an antalgic gait primarily because of his right hip pain, and he holds his right lower extremity in a valgus position with the foot pointing more lateral than the left foot.  The (CI) has a slight limp to the right.”  There was minor subluxation of each hip with no appreciated aural or palpable crepitus (popping).  ROMs were painful and are summarized below.  The examiner indicated that there was severe hip pain with repetitive motion testing and “estimated that after repetitive motion the weakness was 50% over would be expected as normal.”  The examiner also stated that there was complaint of “sharp pains in the right hip area exclusive of the popping that are not present on the left and indeed, the foreign body may have some enhancing affect in the right hip pain.”  The diagnosis was ligamentous laxity of both hips.  The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Bilateral Hip (Thigh) ROM
(Degrees)	MEB ~4 Mo. Pre-Sep	VA C&P ~6 Mo. Post-Sep	
	Left	Right	Left	Right	
Flexion (125 Normal)	85	90	140	86	
External Rotation (45)	50	45	50	70	
Abduction (0-45)	30	40	62	40	
Adduction (45)			30	41	
Comment	Ligamentous laxity	Audible/palpable pop	Painful motion; minor subluxation	
§4.71a Rating	10%	10%	10%	10% (VA 20%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral hip pain condition 0%, coded 5099-5003 (Arthritis, degenerative), citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The VA rated the right hip condition 20% and the left hip condition 10%, each coded 5299-5255 (Femur, impairment of), based on the VA C&P examination 6 months after separation, citing right hip ligamentous laxity with moderate knee or hip disability; and left hip ligamentous laxity with slight knee or hip disability.  The Board first considered if the left hip and the right hip condition, having been de-coupled from the combined PEB bilateral adjudication, remained separately unfitting as established above.  The Board concluded that there was not a preponderance of evidence of the service records that overcame the Board’s presumption that the unbundled right hip condition and unbundled left hip condition were reasonably considered separately unfitting.  The Board then considered its rating recommendation for the unfitting right hip and unfitting left hip conditions at the time of separation.  

The MEB NARSUM examination documented objective evidence of limited motion and functional loss for each hip, while the VA examination documented clear evidence of painful motion and functional loss of each hip.  There was therefore evidence of functional loss supporting a 10% rating (based on §4.40, §4.45, and §4.59) for each hip condition.  There was no limitation of motion which attained a higher rating under the diagnostic codes for hip limitation of motion (5250 thru 5254) for either hip.  The left hip had no greater than slight disability.  The Board considered if the right hip impairment (including groin pain and retained shrapnel) rose to the level of “moderate” (20%) analogous to rating under code 5255 (impairment of femur); however, there was insufficient evidence of that higher level of disability at separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), for the bilateral hip condition, the Board recommends an unfitting right hip with a disability rating of 10% and an unfitting left hip with a disability rating of 10% each coded 5299-5024 (tenosynovitis).  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that mood disorder and post-traumatic stress disorder (PTSD) were not unfitting.  The PTSD and mood disorder were not profiled, implicated in the commander’s statement or judged to fail retention standards.  The mental health MEB NARSUM dated 18 June 2005, 3 months prior to separation, noted complaints of shakes, tremors, irregular sleep patterns, increased aggression, "mentally zone out," and flashbacks.  The CI was first seen by mental health in January 2005 after the CI had started undergoing an MEB.  The CI was treated with medication, individual and group therapy for a diagnosed mood disorder (with supportive psychological testing), and had a diagnosis of PTSD added, with some PTSD symptoms likely due to depression.  The mental status examination was unremarkable with the exception of a somber mood.  The global assessment of functioning was 75 (80 – 71; If symptoms are present they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning).  The psychiatrist indicated that the condition met retention requirements and the profile was S-1.  There was no performance-based evidence from the record that any mental health conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for mood disorder and PTSD and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the non-radicular low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral hip pain condition, the Board unanimously recommends; an unfitting right hip with a disability rating of 10% and an unfitting left hip with a disability rating of 10% each coded 5299-5024; both IAW VASRD §4.71a.  In the matter of the contended mood disorder and PTSD 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.  

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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Non Radicular Low Back Pain	5299-5237	10%	
Bilateral Hip Pain	Right	5299-5024	10%	
	Left	5299-5024	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140731, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX, AR20160017048 (PD201403644)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:
		       
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA