RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01521
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020829

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Basic Trainee, medically separated for “chronic low back pain” and “chronic pain, right hip and pelvis,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  The CI’s condition has worsened over time and he was not treated fairly because of his rank.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’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 panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determinations is based on 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 panel 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 panel 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 - 20020718	VARD - 20021007	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Lower Back Pain And Motion Limitation 	5285-5292	20%	20020617	
Chronic Pain, Right Hip and Pelvis	5099-5003 	10%	Motion Limitation, Right Hip	5299-5255	10		
Bladder Rupture, Status Post Crush Injury	Not Unfitting 
(implied by PEB)	Urinary Frequency & Bladder Spasms Status Post Ruptured Bladder & Surgical Repair	7517	40%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:    

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s “chronic low back pain” condition began in December 2001 after a truck in which he was riding rolled over and pinned him causing a crush injury to his abdomen and pelvis.  Diagnostic imaging showed nondisplaced thoracic and lumbar vertebral spinal process fractures and minimally displaced fractures of the left pubic rami, with widening of the pubic symphysis, and sacrum, with widening of the left sacroiliac joint, as well as an acetabular (hip socket) fracture of the right hip.  A CT scan noted that the vertebral bodies as well as the rings of the vertebral column were well preserved.  The spine and pelvis fractures were determined to be stable and no surgery was indicated.  CI regained motion and mobility, but continued to report constant pain of the low back and anterior pelvis, aggravated by activity.  Electrodiagnostic studies of the right lower extremity (RLE) were performed in April 2002 to evaluate RLE numbness and were normal.  

The MEB NARSUM examination on 10 June 2002, 2 months prior to separation, noted complaints of constant pain in the lower back and anterior pelvic region, aggravated by activity.  Physical examination showed a mildly antalgic gait on the right.  There was normal spinal alignment and curvatures.  There was “mild” tenderness to palpation (TTP) most prominent at the lumbosacral junction, without palpable muscle spasm.  There was no leg length discrepancy.  Back range of motion was 80 degrees of flexion, and full extension, rotation, and lateral flexion.  Lower extremity strength, sensation, and reflexes were normal and straight leg raise testing to elicit radicular symptoms was negative bilaterally.  

At the 17 June 2002 VA Compensation and Pension (C&P) evaluation, performed 2 months before separation, the CI reported constant pain and stiffness of the pelvis.  He reported that his pelvis felt unstable.  The CI reported constant pain, stiffness, weakness, swelling, fatigue, and lack of endurance of his low back.  He denied radiation of the pain into the lower extremities.  He reported flare-ups a few times per week for a few hours improved with bed rest.  He was taking anti-inflammatory medication regularly.  Physical exam showed a normal posture, but the CI’s gait was abnormal with a limp favoring the right.  Leg lengths were equal.  There was TTP, weakness, and painful motion of the lumbar spine noted.  Lumbar spine ROM was reported as flexion of 60 degrees and full extension, rotation, and lateral bending with painful motion noted.  The VA examiner indicated that the ROM of the lumbar spine was “additionally limited by pain, fatigue, weakness, and lack of endurance,” but no additional loss of ROM was reported in degrees.  Lower extremity sensation and reflexes were normal and SLR was negative.  Strength was normal except for slight weakness of hip flexors graded as 5-/5.  Lumbar spine X-rays noted old healed transverse process fractures of the lower thoracic and upper lumbar spine.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the “chronic low back pain” condition 10%, coded 5299-5295 (analogous to lumbosacral strain), according to the VARSD rules for rating the spine in effect on the date of separation, citing characteristic pain on motion.  The VA rated the back condition 20%, coded 5285-5292 (vertebral fracture-limitation of lumbar motion), based on the C&P examination 2 months before separation, citing residual vertebral deformity and a slight motion limitation of the lumbar spine.  

The panel must make its rating recommendation according to the VASRD rules in effect at the time of the CI’s separation.  The panel agreed that the ROM evidence at the MEB NARSUM and VA examinations supported a 10% rating for slight limitation of lumbar ROM coded under 5292 and no higher.  The VA C&P examination noted lumbar ROM of 60 degrees and it was not clear to the panel if this referred to isolated lumbar ROM (which would be full isolated lumbar ROM) or combined thoracolumbar (TL) ROM.  However, the panel concluded that even if the flexion at the VA examination reflected total TL ROM, the overall ROM evidence supported characterizing the limitation of motion as slight and not moderate as all other spine ROM (extension, rotation, lateral bending) was normal at both the MEB NARSUM and VA examinations. .  The panel also considered rating as 5294 (sacroiliac weakness) or 5295 (lumbosacral strain), which were both rated according to the same criteria at the time of separation.  There was characteristic pain on motion for 10% rating coded as 5294 or 5295, but there was no evidence of muscle spasm on extreme forward bending with loss of lateral motion in the standing position or other features to rate higher than 10%.  The VA also provided an additional 10% to the 10% for slight limitation of motion for “demonstrable deformity of vertebral body” under 5285.  However, the panel noted that the spinal vertebral fractures were all characterized as stable, non-displaced fractures, with preservation of vertebral bodies and vertebral rings.  The panel did not find that the VA X-rays noting the healed fractures was sufficient evidence of a significant vertebral deformity to warrant the additional 10% rating and any sacroiliac impairment is subsumed in the panel’s rating recommendation for the back IAW §4.71a.   After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the “chronic low back pain” condition.  

Chronic Pain, Right Hip and Pelvis.  According to STR and the MEB NARSUM, the CI’s “chronic pain, right hip and pelvis” condition began in December 2001 after the truck accident noted above.  Diagnostic imaging showed a minimally displaced right acetabular fracture of the right hip, and the previously noted left pubic ramus and sacral fractures.  The right acetabular fracture and the other pelvis fractures were determined to be stable and no surgery was indicated.  CI was treated with non-weight bearing on the right for the hip fracture for 8 to 12 weeks.  As noted above, the CI regained much of his motion, but continued to report constant right hip pain aggravated by activity.  

The permanent profile dated 14 May 2002 listed “multiple pelvic fractures” and “spine fractures”.  The commander’s statement dated 14 May 2002 implicated the hip and pelvis conditions as impairing the CI’s successful performance of his duties.  

The MEB NARSUM examination on 10 June 2002, 2 months prior to separation, noted complaints of right hip pain and anterior pelvic pain.  Physical examination showed a limp on the right due to pain.  There was TTP of the symphysis pubis (midline anterior pelvis) bilateral hip ROM of 115 degrees of flexion (normal 125), full extension, 20 degrees of adduction (normal 45), 40 degrees of abduction (normal 45), and more than 45 degrees external rotation (normal 45).  There was “mild discomfort” with forced ROM bilaterally.  

At the C&P evaluation the CI reported stiffness and pain in the morning with a limp on the right side.  He reported the majority of his pain was in the right hip, with frequent flare-ups a couple times per week lasting for several hours.  The pain was aggravated by activity and improved with bed rest.  Physical examination showed an abnormal gait favoring the right.  The hips were normal in appearance.  Right hip ROM was flexion of 90 degrees, extension 30 degrees, adduction 25 degrees, abduction of 45 degrees and external rotation of 45 degrees with painful motion noted.  Left hip ROM was flexion of 80 degrees, extension 30 degrees, adduction 25 degrees, abduction of 45 degrees and external rotation of 45 degrees with painful motion noted.  The VA examiner indicated that the ROM of both hips was “additionally limited by pain, fatigue, weakness, and lack of endurance,” but no additional loss of ROM was reported in degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated  “motion limitation, right hip” condition 10% coded 5299-5255 (analogous to femur, impairment of:), and rated “motion limitation, left hip” due to the left pubic ramus and left sacroiliac fractures 10% based on the C&P examination citing mild overall limitation of motion at the joints.  

The PEB combined the chronic right hip pain and pelvis pain conditions as a single unfitting condition coded analogously to 5003 and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  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 panel 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 panel’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 panel 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.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  
  
The panel first considered if the right hip pain condition and the pelvic pain conditions each remained separately unfitting when separated from the PEB’s combined adjudication.  The permanent profile listed both conditions and the commander’s statement implicated both conditions.  However, in this case the term “pelvis fractures” encompassed the right acetabular fracture (hip), the left pubic ramus fracture, and the left sacral fracture.  As noted under the low back pain condition discussion, any impairment due to sacroiliac fracture was subsumed in the rating recommendation for the low back condition.  Regarding the right hip and pelvis pain condition, the right hip condition was noted to be the major source of the CI’s pain and caused an abnormal gait.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the bundled chronic pain of the right hip condition was reasonably considered separately unfitting.  However, there was no performance based evidence in record that there was impairment other than the right hip due to the pelvis pain that was unfitting for continued military service.  The panel concluded that the impairment due to the residual “pelvis pain” was not separately unfitting and was not eligible for separate Service rating.  Therefore there is no recommendation to unbundle the PEB’s combined adjudication.  The panel therefore considered a single rating for the chronic pain of the right hip and pelvis.  

There was evidence of painful limited motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) as adjudicated by the PEB or coded as 5299-5252.  There was no limitation of motion which supported a higher rating under the diagnostic codes for limitation of thigh flexion, extension, or thigh impairment (5251, 5252, 5253).  There was no evidence of hip ankyloses, flail hip joint, or femur impairment (5250, 5254, 5255) for a rating under the respective codes.  There was therefore no route to a rating higher than the 10% adjudicated by the PEB under any applicable VASRD §4.71a code.  The panel also noted that the PEB’s reliance on the USAPDA pain policy was not detrimental to arriving at the highest rating and a 10% rating coded as 5099-5003 is also supported by the VARSD, therefore no change to the PEB’s coding is recommended.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right hip condition.  

Contended PEB Conditions:  Bladder Rupture.  The MEB forwarded a single bundled condition “status post crush injury”, which included bladder rupture among the many injuries.  The PEB did not adjudicate the bladder rupture condition and the panel inferred from the PEB’s silence on the condition that it was considered to be not unfitting.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not listed on the profile, but the CI’s bladder condition after surgery was specifically implicated in the commander’s statement in mid-May 2002 as impairing the CI’s successful ability to perform his duties.  The commander indicated that due to his bladder surgery the CI had to frequently urinate, “sometimes…as frequently as 4 times in 1 hour.”  At the MEB NARSUM examination, 3 months before separation, the CI reported mild burning and frequent urination that was resolving.  The MEB examiner contradictorily followed that statement by saying “he is no longer symptomatic with this condition” and later in the NARSUM the MEB examiner re-iterated this saying, “the patient does have some complaints of frequent urination and burning with urination, but these complaints have essentially resolved.”  The NARSUM noted that the CI had been given prescription medication for an overactive bladder by the urologist, but was not taking it due to side effects.  The NARSUM included the CI’s condition bladder rupture as part of the bundle of conditions due to “polytrauma” that caused the CI to fall below retention standards.  At the VA examination 1 week after the MEB NARSUM examination and 2 months before separation, the CI reported frequent urination two to four times an hour with bladder spasms and awakening to urinate at night at least three times per night.  The panel concluded that there was a preponderance of evidence that the bladder condition was unfitting at separation and eligible for rating.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB did not address the bladder condition as noted.  The VA rated the bladder condition 40% based on the VA examination 2 months before separation, citing urinary frequency.  

Based on the evidence the panel concluded that the CI had residual burning and frequent urination after his bladder surgery that was improving at the time of the MEB NARSUM examination which occurred in close proximity to the pre-separation VA examination.  At the VA examination the CI reported urination frequencies consistent with a 40% rating.  However, the panel considered the conflicting evidence that the CI and the MEB NARSUM examiner indicated the bladder symptoms were significantly improving.  This is supported by the CI’s declination of medication for the overactive bladder due to side effects.  Although these medications do have unpleasant side effects, there are many to choose from including some over the counter medications for some symptom relief.  The fact that the CI was taking no medication led the panel to conclude that the bladder frequency which may have been as frequent as the CI related at the VA examination after his surgery, was gradually improving, since the panel thought anyone regularly needing to urinate every 15 to 30 minutes would more likely than not seek some sort of treatment for relief.  The panel consensus was that the CI’s disability due to the bladder condition supported a 20% rating at separation based on the commander’s confirmation of frequent urination, which was vaguely quantified, but that seemed to the panel to be significantly more frequent than the 10% rating criteria of “daytime voiding interval between two and three hours.”  After due deliberation, the panel agreed that the preponderance of the evidence with regard to the functional impairment of “bladder rupture” favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 7517 and meets the VASRD §4.115a criteria for a 20% rating.  

BOARD FINDINGS:  In the matter of the “chronic low back pain” condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the “chronic pain, right hip and pelvis” condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended bladder rupture condition, the panel unanimously agrees that it was unfitting and unanimously recommends a disability rating of 20%, coded 7517 IAW VASRD §4.115a.  There were no other conditions within the panel’s scope of review for consideration.  

The panel 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	
Chronic Low Back Pain	5299-5292	10%	
Chronic Pain Right Hip Pain	5299-5252	10%	
Bladder Rupture 	7517	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150611, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170008569, 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, XXXXXXXXXXXXXXXXXXX.

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

Sincerely,					      
Enclosure