RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04163
BRANCH OF SERVICE:  Army 		SEPARATION DATE:  20070703

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Motor Transport Operator) medically separated for a left hip condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U2L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB characterized the condition as “chronic left hip pain” and forwarded it to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (lumbar degenerative disc disease (DDD), bilateral shoulder pain and cervical DDD – all not disqualifying) for PEB adjudication.  The Informal PEB adjudicated “chronic pain of the left hip” as unfitting, rated 0%, citing the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  

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/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 20070116	VA* - (~8 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain of the L/Hip	5099-5003	0%	L/Hip Syndrome	5251	0%	20080311	
Lumbar DDD	Not Unfitting	Mild Degenerative Disease  L4-L5	5010	10%	20080311	
Bilateral Shoulder Pain	Not Unfitting	Left Shoulder Strain	5203	0%	20080311	
		Right Shoulder Strain	5203	0%	20080311	
Cervical DDD	Not Unfitting	Cervical Strain	5237	10%	20080311	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5 	
RATING:  0%	COMBINED RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20080529 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Left Hip Pain Condition.  The service treatment record (STR) indicated a radiology report dated 27 February 2006 ordered for chronic left hip and trochanteric bursa pain was normal.  An orthopedic specialty care consult dated 30 October 2006 indicated the CI presented with complaints related to his left hip as well as lower back, shoulders, and neck (see below).  He denied any injuries to the hip and stated he had trouble with his left hip towards the end of advanced individual training, or AIT, in December 2004.  He was seen and evaluated in February 2005 while deployed and was placed on temporary profiles and multiple medications including Ultram (tramadol, an opioid-like medication), and narcotics (Vicodin, (hydrocodone/APAP), Percocet (oxycodone/acetaminophen), Tylenol #3 (codeine/acetaminophen), and OxyContin (oxycodone)).  Physical therapy (PT) was of no help.  Left hip pain was accentuated when he had to put weight on his leg and he was unable to run or do sit-ups.  He described the pain over the hip at 9/10 (10 being the worst pain) and related there was pain down into the left thigh as far as the knee level.  He had trouble with sitting more than 25 minutes at a time and frequently had to stand up to relieve the discomfort.  An injection was offered to treat the left hip, but the CI decided not to have anything done nor did he accept the offer to be transferred out of the theater for treatment.  On examination the CI had an antalgic gait involving the left lower extremity and he walked with a cane in his right hand, but was able to stand on his toes and heels.  On fist percussion, there was a complaint of pain over the left hip.  With multiple passive ranges-of-motion (ROM) of the hip going from 0 to 90 degrees of flexion and internal and external rotation, there was one click over the left hip, but it was not reproducible.  There was no snapping at the iliotibial band, at least on passive motion.  The examiner indicated the CI was undergoing an MEB for left hip pain (snapping hip).  On 20 November 2006, magnetic resonance imaging (MRI) ordered for left hip pain was normal. 

The commander’s statement dated 31 August 2006 indicated that though in obvious pain on some days, the CI still managed to remain motivated and contributed to the company while limited in his abilities.  He continued to perform physical training as best as he could without violating the conditions of his physical profile.  At the MEB examination dated 1 December 2006, the CI reported on DD Form 2807-1, Report of Medical Examination, “left hip pain never goes away.”  The MEB narrative summary (NARSUM) dated 1 December 2006 noted the CI denied any hip problems prior to November 2004 when he began to notice left hip pain in the absence of any specific injuries.  Prior to and during deployment the hip pain worsened and he obtained only temporary reduction in pain with the pain medications and no improvement in his symptoms with PT.  During this time he began using a cane.  On examination, as noted on DD Form 2808, Report of Medical Examination, the CI’s left hip had global tenderness to palpation (TTP), which was greatest about the greater trochanter.  Patrick’s test (to determine hip abnormalities) produced joint line pain on the left, but no click or crepitus was felt in the hip joint.  There was increased pain with flexion of the left hip past approximately 70 degrees.  Pain worsened with standing, walking, any weight bearing activity, any impact such as stepping down from a curb, with movement after inactivity, and with impact activities.  There were no surgical indications to treat his hip pain.  A permanent L3 profile was issued in December 2006 with limitations of all chemical defense equipment, all physical fitness testing, and all military functional activities except wearing a protective mask. 

The VARD dated 29 May 2008, indicated the CI reported his left hip felt like it was “going to fall off” and he felt pressure like it needed to be cracked or popped.  On examination the ROM measurements of the left hip were flexion 0 to 100 degrees, extension 0 to 45 degrees and abduction 0 to 35 degrees.  There was objective evidence of pain with active motion.  The CI was able to cross the left leg over the right and could toe out less than 15 degrees.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Hip (Thigh) ROM
(Degrees)	PT/MEB ~3 Mo. Pre-Sep	VA C&P ~12 Mo. Post-Sep	
Flexion (125 Normal)	60/65/63	100	
Extension (20)	10/11/10	45	
External Rotation (45)	--	--	
Abduction (0-45)	35/33/32	35	
Adduction (45)	--	--	
Comment	No limited adduction preventing ability to cross leg; able to toe-out > 15 degrees; pain limited motion	Pain on motion; able to cross left leg over the right and could toe out less than 15 degrees.	
§4.71a Rating	10% 	10% if toe out < 15 degrees 	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5099-5003 (degenerative arthritis) for chronic pain of the left hip.  The VA assigned a 0% rating using code 5251 (thigh limitation of extension) for the left hip syndrome.  The Board sought a route for a higher rating and noted the MEB ROMs were noncompensable, but there was pain-limited motion; therefore, use of analogous code 5099-5003 with a rating of 10% is reasonable and applicable.  The Board considered applying other codes for a higher rating, but in the absence of ankylosis, thigh impairment, a flail joint of the hip, and impairment of the femur, none could be used and a higher rating could not be applied.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic left hip pain condition.  

Contended PEB Conditions: Lumbar DDD, Bilateral Shoulder Pain, and Cervical DDD. The Board’s main charge is to assess the fairness of the PEB’s determination that lumbar DDD, bilateral shoulder pain, and cervical DDD 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.  The lumbar DDD was profiled as low back pain (LBP), but it is unclear whether the L3 profile was for the chronic hip pain (see above) or the LBP or for both together. The bilateral shoulder pain and cervical DDD were profiled as U2 and none of the contended conditions were implicated in the commander’s statement.  They were all determined to be not disqualifying and were not judged to fail retention standards.   

Lumbar DDD.  The CI reported LBP since 2005.  An MRI of the lumbar spine in June 2006 demonstrated spondylosis, DDD and facet arthrosis with a broad posterior disc protrusion at L5-S1 likely compromising the exiting right L5 nerve root.  At an orthopedic evaluation dated 25 September 2006 the CI indicated he had no treatment and objectively had global left lower extremity weakness due to disuse and decreased sensation.  Reflexes were symmetrical and straight leg raise (SLR) (to determine nerve root irritation) was negative.  The CI was unwilling to attempt forward flexion due to anticipated pain, had significant LBP with light touch, and a negative Patrick’s test.  The CI was referred to his primary care manager for conservative management.  In a revision of a specialty care consult dictated on 30 October 2006, examination revealed an antalgic gait. With fist percussion over the lumbar spine there were complaints of pain as well as over the left sacroiliac joint.  With light touch there were complaints of midline pain; no paralumbar muscular spasms were appreciated.  Examination on 1 December 2006 revealed TTP in the midline and the paravertebral areas at the lower thoracic and lumbar areas with bilateral sacroiliac joint TTP and no muscle spasm.  There was positive lumbar pain with axial compression and SLR testing (to determine nerve root irritation) was negative.  Neurologic evaluation was unremarkable.  The VARD based on the VA C&P examination indicated the CI reported no specific injury but related the problem to picking up and wearing gear every day.  Treatment was with PT and medication.  On examination the ROM measurements were flexion 0 to 85 degrees, extension 0 to 20 degrees, left lateral flexion 0 to 15 degrees, left lateral rotation 0 to 23 degrees, right lateral flexion 0 to 25 degrees, and right lateral rotation 0 to 26 degrees.  There was no objective evidence of pain or limitation of motion with repetition.  Neurologic evaluation was unremarkable and X-rays revealed mild DDD at L4-L5 without facet arthropathy.  The VA assigned a 10% rating using code 5010 (arthritis due to trauma).

Bilateral Shoulder Pain.  MRIs were ordered for painful popping of both shoulders and were performed on 12 October 2006.  The MRI of the left shoulder demonstrated minimal fluid in the subacromial bursa, but was otherwise unremarkable and the MRI of the right shoulder was also unremarkable.  In a revision of a specialty care consult dictated on 30 October 2006, examination revealed no atrophy as far as the shoulders were concerned.  Internal and external rotations were good.  There was no apprehension sign in reference to subluxation or dislocation.  Examination on 1 December 2006 noted bilateral shoulders had tenderness with rotation and with overhead movement, a negative apprehension test, posterior TTP, and negative crepitus.  At the VA examination based on the VARD, the CI reported in January 2006 that during PT when his hands were held over his head, they became numb.  There were no episodes of dislocation or subluxation, locking episodes or effusions.  The left shoulder ROM flexion was 0 to 155 degrees, left abduction 0 to 160 degrees, left internal rotation 0 to 85 degrees, and left external rotation 0 to 85 degrees without objective evidence of pain with active motion.  Right shoulder flexion was 0 to 155 degrees, right abduction 0 to 160 degrees, right internal rotation 0 to 50 degrees and right external rotation 0 to 90 degrees without objective evidence of pain with active motion.  There was no additional limitation of motion or pain with repetition.  X-rays showed no acute right or left acromioclavicular subluxation or dislocation or clavicular fracture.  The bilateral shoulders were normal and with no degenerative changes.  The VA assigned a rating of 0% for each shoulder using code 5203 (clavicle or scapula impairment).  

Cervical DDD.  An MRI dated 12 October 2006 was ordered for neck pain and for numbness of both arms when raised over the head.  It demonstrated mild multilevel spondylotic (arthritic changes) disease of the cervical spine, but with no focal disc protrusion or disc extrusion identified.  However, there were broad-based disc bulges at C4-5, C5-6, and C6-7 with minimal left foraminal stenosis at C4-5, minimal bilateral foraminal stenosis at C5-6, and mild right foraminal stenosis at C6-7.   In a revision of a specialty care consult dictated on 30 October 2006, examination revealed there was a hesitant ROM, but it was full and no paracervical muscular spasm was appreciated.  Examination on 1 December 2006 revealed TTP in the midline and the paravertebral areas at the cervical area.  The VARD, based on the VA examination, indicated the CI reported he injured his neck and back while standing as a gunner when the vehicle hit a 3-3½ foot embankment in the road and he was thrown forward and then back into a steel plate.  As a result he reported neck pain on a daily basis.  Cervical ROM measurements were flexion 0 to 55 degrees, extension 0 to 36 degrees, left lateral flexion 0 to 35 degrees, left lateral rotation 0 to 51 degrees, right lateral flexion 0 to 35 degrees and right lateral rotation 0 to 53 degrees.  There was no objective evidence of pain on motion or additional limitation with repetitive motion.  Neurologic examination was unremarkable.  X-rays showed alignment was maintained; there was no acute fracture or spondylolisthesis (one vertebra forward over another); there were no degenerative changes or narrowing of the neural foramen; and the paravertebral soft tissues were unremarkable.  The VA assigned a 10% rating using code 5237 (cervical strain) based on 38 CFR 3.304(d), which states that satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. The aforementioned was reviewed and considered by the Board.   There was no performance-based evidence from the record that any of the conditions, even if the bilateral shoulder condition were uncoupled and each shoulder were individually considered, significantly interfered with satisfactory duty performance.  After a detailed discussion of each condition and how it was profiled, and after lengthy deliberations 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 any 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 chronic left hip condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the chronic left hip condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended lumbar DDD, bilateral shoulder pain, and cervical DDD conditions, the Board majority 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	
Chronic Left Hip Pain 	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

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

Minority Opinion  
The Board determined that the lumbar DDD, the bilateral shoulder pain, and the cervical DDD were individually not unfitting and with that position there is no contention.  However, there is a preponderance of the evidence with regard to the impairment of the lumbar DDD and cervical DDD conditions, both of which clearly and unequivocally are supported by MRI evidence. There was broad posterior disc protrusion at L5-S1 , and  mild multilevel spondylotic disease with disc bulges from C4 to C7, as well as sites of foraminal stenosis (diminished nerve outlet after the vertebrae) in the mid-to lower cervical spine.  

Those findings strongly favor a recommendation as an additionally unfitting condition based on the overall effect IAW DoDI 1332.38 E3.P3.4.4., which states, “A member may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of the physical disability.”  However, there is no disability rating for the overall effect in the VASRD.  

Furthermore, AR 635-40 3-1.b. states:
Considering the overall effect of disabilities. The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered. The effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments. A Soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness.

While the commander’s statement did not explicitly address functional impairments related to the lumbar and cervical DDD he did observe the CI in pain.  From a functional standpoint the CI had pain and difficulty picking up and wearing his protective equipment, which is critical to survival. When such equipment is used it could affect both the lower back and the neck, both of which are already challenged by the hip disability.  Both the back and neck conditions had more than sufficient anatomical alterations to account for his pain.  The profile included all conditions, albeit the L3 was more so directed to the hip, nevertheless it limited the CI from all functional military activities, except wearing chemical protective equipment, and physical fitness testing.  A portion of the Board’s discussion addressed the CI’s employment post-separation, but the specifics of each job could only be speculated as to how well he functioned on and off the job in the absence of additional details that were not only unavailable, but were beyond the forward look of 12 months pursuant to DoDI 6040.44.  

Therefore, based on the preponderance of the evidence, a recommendation is put forth for an additionally unfitting condition based on the overall effect consisting of lumbar DDD and cervical DDD conditions IAW DoDI 1332.38 E3.P3.4.4. and DoDI 6044.44 is recommended.

In the matter of the contended lumbar DDD and cervical DDD conditions, the minority opinion asserts that based on the overall effect they were unfitting and recommends a disability rating of 0%, coding is not applicable (N/A) [IAW VASRD §4.71a].

CONDITION	VASRD CODE	RATING	
Chronic Left Hip Pain 	5099-5003	10%	
Overall Effect (Lumbar DDD and Cervical DDD)	N/A	0%	
COMBINED	10%	

AR20160005507, 

Dear 

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay. A copy of this decision will be filed with your Physical
Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure