RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00360
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070404

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “bilateral hip pain” and “chronic low back pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI made no specific contention.  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 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 – 20061220	VARD – 20070913	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Hip Pain	5099-5003	10%	Osteoarthritis, Left Hip	5250-5019	10%	20070516	
			Osteoarthritis, Right Hip	5250-5019	10%	20070516	
Chronic Low Back Pain	5299-5237	10%	Degenerative Joint Disease, L4-L5 And L5-S1, with Posterior Disc Bulge and Foraminal Stenosis 	5242-5010	10%1	20070516	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%2	
Note 1: Subsequent DROD dated 20080226 increased the 10% to 20% and changed the code to 5242 effective day after separation based on 20080205 QTC examination.  
Note 2: Subsequent DROD dated 20080226 changed the 80% rating to 90%.

ANALYSIS SUMMARY:  

Bilateral Hip Pain.  The PEB combined the right and left hip pain conditions as a single unfitting condition coded analogously to 5003 (degenerative arthritis) and rated 10%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore 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 Disability Evaluation System or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral hip pain condition began insidiously in 2005 without a history of injury or trauma.  Radiographic (X-ray) studies showed bilateral degenerative changes and evidence of a tear of the right hip labrum (cartilaginous rim).  Despite treatment, the bilateral hip condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for an MEB.  The MEB forwarded “right hip osteoarthritis” and “bilateral hip impingement” for PEB adjudication.

An orthopedic examiner on 21 July 2006 (8 months prior to separation) noted right hip range of motion (ROM) as described in the chart below.  The left hip was noted to have similar symptoms, but to a slightly lesser degree than the right.  The primary finding of the left hip was stiffness with internal and external rotation.

The MEB NARSUM examination on 6 November 2006 (5 months prior to separation) noted a greater than 1-year history of bilateral hip pain, and full-time use of a cane due to right hip pain.
Physical examination showed decreased hip ROM, as reflected in the chart below.  Ambulation was observed to occur with an antalgic gait to the right, although he could walk on heels and toes without difficulty or limitations.  The examiner concluded that the etiology of the hip pain was unclear.

The commander’s statement on 15 November 2006 indicated that the CI’s back and hip problems precluded engagement in the CI’s military occupational specialty (MOS) duties.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 17 November 2006, the CI reported right hip pain but was silent about the left hip.  However, the attached profiling section listed chronic persistent right greater than left hip pain.  Physical examination showed an antalgic wide-based gait, but he could not walk on heels and toes.  The permanent profile dated 8 December 2006 listed right hip osteoarthritis and bilateral hip impingement.

At the 16 May 2007 VA Compensation and Pension (C&P) examination, performed 1 month after separation, the CI reported that he exercised daily by walking ¼ to ½ mile.  His hip condition affected all of his daily activities, including sitting and standing up.  Physical examination showed a reluctance to ambulate without assistance due to pain.  Nevertheless, gait was described as normal, and he was able to walk on toes and heels and perform squatting without pain.  Hip ROM is noted in the chart below.  Flexion was not assessed due to reported severity of back pain.  Bilateral hip X-rays were normal.  The examiner concluded that the severity of reported hip symptoms was not explained by findings on the examination.

At a 5 February 2008 VA evaluation, performed 10 months after separation, the CI reported constant bilateral hip pain that was elicited by physical activity and relieved by medication.  He reported the need for a cane because of the hips and back.  Physical examination showed an antalgic gait with use of a cane, but the specific gait pattern was not described and the cause of the gait abnormality was not addressed.  ROM measurements (reflected in the chart below) were unchanged after repetitive use.

The 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.  

Hip (Thigh) ROM
(Degrees)	Ortho ~8 Mos. Pre-Sep 	MEB ~5 Mos. Pre-Sep	PT ~4 Mos. Pre-Sep	VA C&P ~1 Mo. Post-Sep	VA ~10 Mos. Post-Sep	
	Right	Left	Right	Left	Right	Left	Right	Left	Right	
Flexion (125 Normal)	90	95	90	26, 30, 31	21, 26, 22	Not assessed 	90	90	
Extension (20)	50	0	0	10, 12, 10	10, 10, 9	10	10	30	30	
External Rotation (45)	50	45	50	24, 22, 26	27 30 27	45	45	60	60	
Abduction (0-45)	--	45	45	15, 15, 18	22, 22, 20	20	20	40	40	
Adduction (45)	--	--	--	20, 22, 24	26, 24, 21	15	15	25	25	
Comment	+Painful motion	+Tender-ness	+Painful motion	+Painful motion	+Painful motion	+Tenderness; Painful motion only at terminal motion in all planes	
§4.71a Rating	10%1	10%2	10%1,2	20%3	20%3	10%1	10%1	10%1	10%1	
  1IAW VASRD §4.59 (painful motion)
   2For limitation of extension
   3For limitation of flexion

The Board directed attention to its rating recommendation based on the above evidence.  As previously elaborated, the PEB assigned a combined 10% rating for both hips under the 5003 code.  In this case, a bilateral hip condition was considered to fail retention standards, was implicated by the NARSUM and commander’s statement, and was profiled.  Although the STR indicated that pain in the right hip was worse than the left, there was no information which would permit the Board to discriminate performance limitations attributable to either hip.  Members therefore agreed that each hip was reasonably justified as separately unfitting.  The VA assigned a 10% rating for each hip using a combined 5250-5019 code (ankylosis of hip and bursitis), based on the VA C&P examination 1 month after separation, citing painful motion as the rationale.  Board members agreed that a 10% rating for the right hip was justified with application of VASRD §4.59, since painful motion was reported at every examination.  Regarding the left hip, although the orthopedic examiner 8 months prior to separation reported stiffness and the NARSUM examiner did not specify the presence or absence of painful motion, all other examiners did note the presence of painful motion.  The Board therefore concluded that a 10% rating for the left hip was reasonably conceded IAW §4.59.

There was no support for a rating under the 5253 code (thigh, impairment of) for limitation of abduction, adduction or external rotation.  However, in deliberating other ROM rating and coding options, the Board was challenged by inconsistencies in the available evidence.  For example, the NARSUM examination annotated 0 degrees of extension of each hip, which would support a 10% rating under the 5251 code (thigh, limitation of extension of).  However, this measurement was incompatible with the ability to walk, which the CI was able to do at that examination, and was inconsistent with a prior orthopedic examination (right hip only) and the second VA examination, which both showed hyperextension.  The NARSUM examiner also observed the CI to walk on heels and toes without difficulty or limitations but at the MEB examination soon thereafter the CI could not do this.  The PT (physical therapy) examination 4 months prior to separation documented dramatically decreased flexion (bilaterally) that could support a 20% or even 30% rating under the 5252 code (thigh, limitation of flexion of); however, this degree of limitation was unexplained by any history of worsening or injury, and was not consistent with other examinations or underlying pathology.  The Board agreed with the VA that the reported inability to perform any hip flexion during the first C&P examination (1 month after separation) did not warrant the highest 40% rating under the 5252 code because the limitation was reportedly due to back pain.  Moreover, the ability to squat without pain at that examination provided questionable support for even a minimum rating for limited hip flexion, and the examiner noted that the hip pain severity was not explained by objective findings.  Given the inconsistencies in ROM measurements just elaborated, the Board concluded a 10% rating for each hip was reasonably assigned only on the basis of VASRD §4.59.  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 right hip pain condition and 10% for the left hip pain condition, each coded 5099-5003.

Low Back Pain.  According to the STR and the MEB NARSUM, the CI’s low back pain condition began in approximately 2005 without any specific injury or trauma.  X-ray studies showed multilevel disc bulges from L3 to S1.  At L4-L5 there was a broad-based posterior component that caused mild-to-moderate neuroforaminal stenosis bilaterally.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “low back pain” for PEB adjudication.

At an orthopedic evaluation on 20 October 2006 (5 months prior to separation) the CI reported pain radiating from the left low back down the posterior thigh to the knee.  The MEB NARSUM examination on 6 November 2006 noted complaints of back pain with a burning sensation, but no radiating symptoms.  Physical examination showed an antalgic gait and use of a cane to ambulate related to a right hip condition (see above), although he was able to heel walk and toe walk without any difficulty or limitations.  The CI displayed significantly limited lumbar spine motion secondary to pain and would flex to about 20 degrees (normal 90).  Extension was neutral (normal 30) and he tilted side-to-side (lateral flexion) only minimally (normal 30).  He would not twist at all (rotation, normal 30 degrees each direction).  There was no abnormal spinal curvature and muscle spasm was not mentioned.  There was lumbar spinal tenderness, although the examiner indicated the severity was out of proportion to examination findings.  Lower extremity muscle strength was normal and a test for nerve root impingement was negative.

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 17 November 2006, 5 months prior to separation, the CI reported chronic, daily back pain.  Physical examination showed an inability to walk on heels or toes and lumbar paraspinal tenderness.  Guarding, muscle spasm and spinal contour were not mentioned.  Thoracolumbar flexion was 40 degrees and extension 35 degrees.  Lower extremity muscle strength was normal and a test for nerve root impingement was negative.

At the PT examination 4 months prior to separation, thoracolumbar flexion was 15 degrees and combined ROM was 55 degrees (normal 240).  Painful motion was present with all movements.  Guarding, muscle spasm, gait and spinal contour were not mentioned.  The examiner reported three signs of non-physiologic pain.

The 16 May 2007 VA C&P evaluation, performed 1 month after separation, recorded that the CI “did not take any pain medications today… (because he)…wanted to make sure his examination was limited by pain today.”  Spine examination indicated that the CI did not want to go through all motions.  However, the examiner found no pain associated with opposing mild resistance.  Although the CI did not want to attempt ambulation without assistance, posture and gait was described as normal.  He was able to walk on toes and heels and perform squatting without pain.  The examiner did not mention spinal contour, tenderness, guarding or muscle spasm.  

At the second VA evaluation (10 months after separation), the CI reported stiffness, weakness and constant localized low back pain rated at 8/10 in severity.  Pain was elicited by physical activity and relieved by medication.  He reported the need for a cane because of the hips and back.  He was able to function with medication and he did not have any incapacitation from the back pain.  Physical examination showed an antalgic gait with use of a cane, but the specific gait pattern was not described and the cause of the gait abnormality was not addressed.  Tenderness was present but there was no spasm, and spinal contour was normal.  Thoracolumbar flexion was 45 degrees and combined ROM was 170 degrees.  There was no additional limitation after repetition.  Painful motion was present but only at end of motion in all planes.  There was no evidence of radiating pain on movement, and a test for nerve root impingement was negative.  Lower extremity neurologic findings were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain condition 10%, coded analogously to 5237 (lumbosacral strain).  The VA initially rated the low back pain condition 10% coded 5242-5010 (degenerative arthritis of the spine and arthritis due to trauma) based on the VA C&P examination a month after separation, citing painful motion.  However, based on the VA examination performed 10 months after separation, the VA increased the rating to 20% (effective the day after separation) for thoracolumbar flexion of 45 degrees.

In considering whether a rating higher than the PEB’s 10% was justified at the time of separation, Board members noted that two examinations before separation could support a 40% rating for flexion of 30 degrees or less.  However, neither the NARSUM examiner (who reported flexion of “approximately” 20 degrees and remarkably reduced motion in all other planes), nor the PT examiner (who reported flexion of 15 degrees) commented on the presence of muscle spasm or guarding, both of which would be expected with that extreme degree of limitation.  These two examiners also observed evidence of non-physiologic pain, which the Board considered relevant to probative value determination in this case.  The Board agreed with the VA that the first C&P examination, at which the CI refused to perform thoracolumbar ROM, could not be used for rating based on limitation of ROM.  Although more remote from the time of separation, the second VA examination was assigned preponderant probative value since it was the most complete examination.  This examination warranted a 20% rating for limitation of flexion, and it should be noted that the MEB examiner (on the DD Form 2808) also documented flexion consistent with this evaluation.  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 recommends a disability rating of 20% for the low back pain condition, coded 5299-5237.

BOARD FINDINGS:  In the matter of the bilateral hip pain condition, the Board unanimously recommends that it be adjudicated for two separate conditions.  In the matter of the right hip pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left hip condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  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	
Right Hip Pain	5099-5003	10%	
Left Hip Pain	5099-5003	10%	
Chronic Low Back Pain	5299-5237	20%	
COMBINED (w/BLF)	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150326, w/attachments
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 XXXXXXXXXXXXXXXXXXXXX, AR20170000673 (PD201500360)

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 40% 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 40% 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