RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04303
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E1, Cannon Crewmember, medically separated for “chronic left hip pain radiating to the paraspinous lumbar muscles secondary to a left hip stress fracture,” with a disability rating of 0%.  

CI CONTENTION:  His conditions continue to worsen and negatively impact his daily activities.  The CI’s 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 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 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:  

SERVICE PEB - 20060828	VARD - 20070130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Hip Pain Radiating Lumbar Muscles Secondary to a Left Hip Stress Fracture	5099-5022	0%	Status Post Left Hip Stress Fracture	5252-5024	10%	20061106	
			Lumbar Strain	5237-5024	10%	20061106	
Axis I:  Depressive Disorder not otherwise Specified	Not Unfitting	Depressive Disorder	9434	30%	20061101	
Axis II: Polysubstance Abuse/Dependence	Not Unfitting					
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Left Hip Pain Radiating to the Paraspinous Lumbar Muscles Secondary to a Left Hip Stress Fracture.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s left hip condition began in December 2004 during a unit run.  The CI had immediate left hip pain requiring transport, and a bone scan documented left femoral neck stress fracture.  Despite 9 months of crutches and therapy, the hip pain did not improve and the CI had developed back pain.  Repeat bone scan in November 2005 documented continued femoral neck stress fracture.  The CI’s hip and back pain conditions 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 “chronic left hip pain” and “degenerative disk disease of the lumbar spine” for PEB adjudication.  

The range of motion (ROM) examination 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)	MEB ~7 Mo. Pre-Sep	VA C&P ~1 Mo. Pre-Sep	
Flexion (125 Normal)	115	125	
Extension (20)	15	10	
Abduction (0-45)	40	15	
Adduction (45)	25	20	
Comment	Painful motion; pain limited	Painful motion	
§4.71a Rating	10% (PEB 0%)	10%	

At the MEB examination (recorded on DD Forms 2807 and 2808) dated April 2006, 7 months prior to separation, the CI reported low back pain related to hip pain, numbness and tingling/paresthesias (abnormal sensations) in his arms and thighs.  The examiner indicated an antalgic gait, tenderness of the left hip with decreased ROM summarized above.  The back had full ROM with tenderness to palpation.  Provocative tests for radiculopathy were negative.  

At the MEB NARSUM examination dated May 2006, 6 months prior to separation, the CI reported 4-8/10 pain at the left lateral hip region that radiated into the lower back.  It was aggravated by impact activity or walking and he used crutches with non-weight bearing of the left leg to ambulate.  The examiner referenced the physical therapy pain-limited hip ROM as charted above, and an orthopedic evaluation in May 2006 for left hip and back pain.  That examination documented an antalgic gait with lumbar paraspinal tenderness, full back ROM, and a tender hip.  Left lower extremity strength was slightly weak (4/5 compared to opposite side 5/5).  Reflexes and sensation were intact.  The CI was unable to walk heel-to-toe due to incoordination.  Diagnostic imaging of the back showed multi-level degenerative disk disease and a “posterior subannular fissure involving L5-S1 disk; this finding can be quite symptomatic.”  Despite disk bulges and disk protrusions there was no central canal stenosis or significant neural foraminal stenosis.  Electrodiagnostic testing of the upper extremities was normal.  

At the VA Compensation and Pension (C&P) examination in November 2006, performed 1 month before separation, the CI reported chronic left hip pain of 7/10 with pain, weakness, and lack of endurance with use.  Back pain was 7/10 elicited by physical activity or could occur without instigation.  He was taking anti-inflammatory and narcotic pain medication and the reported functional impairment from the hip and back was “can't walk, run or stand for long periods of time.”  Physical examination showed a normal gait without use of an assistive device.  The left hip and thoracolumbar spine ROMs are summarized above.  There were no reported periods of incapacitation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the “chronic left hip pain” and “degenerative disk disease of the lumbar spine” conditions as a single unfitting condition coded analogously to 5022 (periostitis) and rated 0%, citing the back pain as radiating from the hip condition and the hip without loss of joint motion.  The VA assigned a 10% rating for the left hip using code 5252-5024 (thigh, limitation of flexion–tenosynovitis) and a 10% rating for the back coded 5237-5024 (lumbosacral strain–tenosynovitis) based on the VA C&P examination 1 month before separation, citing painful motion.  

The Board’s initial charge in this case was directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  The PEB viewed the back condition as radiating pain from the hip condition.  However, the CI had used crutches for over a year, back imaging documented lumbar spine pathology which would cause back pain, and the MEB considered the back as a separate entity from the hip.  Both the back and the hip were considered to fail retention standards, both were implicated by the NARSUM, and both were profiled.  The Board concluded that there was not a preponderance of evidence of the service records that overcame the Board’s presumption that the bundled back condition was reasonably considered separately unfitting.  The Board then considered its rating recommendation for the unfitting hip and unfitting back conditions at the time of separation.  

With regard to the hip condition, all examinations documented painful motion.  Although there was insufficient limitation of motion to support a minimum rating, the Board agreed a 10% rating was justified for the presence of painful motion.  Alternative rating analogous to 5255 (femur, impairment of) for a continued stress fracture of the femoral neck (malunion) was considered.  The Board noted that although the hip disability at the NARSUM examination may have been “moderate,” by the pre-separation VA examination, the hip disability was “slight” and would rate no higher than 10%.  After due deliberation, and considering all of the evidence, the Board recommends a separately unfit determination with a disability rating of 10% for the left hip condition, coded 5255-5024.

With regard to the back condition, although there was insufficient limitation of motion to support a minimum rating, the Board agreed a 10% rating was justified for the presence of tenderness at the NARSUM examination or painful motion at the VA examination.  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, and considering all of the evidence, the Board recommends a separately unfit determination with a disability rating of 10% for the back condition, coded 5242. 

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that depressive disorder not otherwise specified (NOS) (Axis I) and polysubstance abuse/dependence (Axis II) 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.  Polysubstance abuse/dependence are conditions that do not constitute a physical disability.  The Board therefore has no reasonable basis for recommending these conditions as additionally unfitting for separation rating.  The depressive disorder condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The psychiatry addendum to the NARSUM, dated 15 May 2006, documented a long standing history of both conditions, with a recent increase in symptoms due to decreased substance abuse and potential chapter (UCMJ) action for oversleeping.  The CI was on multiple psychotropic medications and was considered to meet retention standards and had a global assessment of functioning in the mild symptom range.  Up to that point there was insufficient performance-based evidence from the record that the contended depressive disorder condition significantly interfered with satisfactory duty performance.  However, the record indicates that the CI was admitted for a psychiatric hospitalization in June 2006 due to an intentional overdose of Seroquel (atypical antipsychotic used for sleeping).  Follow-up with psychiatry in June 2006 indicated the CI was stable.  The VA psychiatric examination in November 2006, 1 month prior to separation, indicated increased depressive symptoms and sleeping problems.  The major functional impact appeared to be due to insomnia with total daily functioning affected by reduced occupational capacity and fatigue.  The global assessment of functioning was in the serious symptom range.  

The Board considered that from a mental health perspective, the CI had adequate performance until referral into the disability evaluation process (DES).  The increased stress during the DES and the post-NARSUM suicide attempt were considered by the Board.  After due deliberation, and 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 contended depressive disorder not otherwise specified condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the hip and back pain condition, the Board unanimously recommends that the hip joint and back condition be separately adjudicated as follows:  an unfitting left hip condition coded 5255-5024 and rated 10%, and an unfitting back condition, coded 5242 and rated 10%; both IAW VASRD §4.71a.  In the matter of the contended depressive disorder NOS and polysubstance abuse/dependence conditions, the Board unanimously agrees that it cannot recommend any of the conditions for additional disability ratings.  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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Left Hip Pain	5255-5024	10%	
Degenerative Disk Disease of the Lumbar Spine	5242	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141117, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160011502, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

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,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Armv

Enclosure