RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00261
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040715

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Network Switching Systems Operator, medically separated for “bilateral lower extremity [LE] pain” with a disability rating of 10%.

CI CONTENTION:  Rating increase for his unfitting condition requested. The 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 review of disability ratings assigned 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 or non-compensable.  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 determination 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(s) 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 - 20040511	VARD - 20041006	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral LE Pain	5099-5003	10%	Residuals, ORIF Fracture Left Femur	5255	30%	20040624	
			Residuals, ORIF Fracture Right Femur	5255	20%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Bilateral LE Pain.  The PEB combined the chronic LE pain from femur fractures, bilateral knee pain due to pain replacement, and bilateral hip pain due to femur fractures conditions under a single disability rating, 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.  This 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 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 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.  Given their shared histories, examinations and similarities with respect to pathology, the evidence for the left and right LE, knee and hip pain conditions are addressed and presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral leg condition began in July 2003 following a motorcycle accident.  In July 2003 the CI sustained bilateral femur fractures and underwent open reduction and internal fixation (ORIF).  After rehabilitation, the CI continued to report bilateral knee greater than hip pain.  At a physical therapy visit on 11 March 2004, 7 months after surgery, the CI reported left knee pain.  The physical examination showed full active hip and knee range of motion (ROM) bilaterally. There was decreased quadriceps and hip strength (internal and external rotation) bilaterally.  The therapist recommended discontinuation of cane ambulation as tolerated.

The 17 March 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of chronic bilateral LE pain and an inability to run or walk briskly without pain.  Physical examination showed atrophy of the quadriceps muscles bilaterally.  There was full ROM and anterior knee pain with motion bilaterally.  A 23 April 2004 physical therapy note documented an antalgic gait with decreased single limb stance and quadriceps strength bilaterally.  

At the 24 June 2004 VA Compensation and Pension (C&P) evaluation, one month before separation, the CI reported pain in both of his knees when walking.  Physical examination showed the CI walked with a slight limp favoring his left leg, but did not use any aids to ambulate.  There was no evidence of major muscle group atrophy or decreased sensation to sharp or dull stimuli of the LEs.  ROM of the hips showed 90 degrees of flexion (normal 125), 45 degrees of abduction (normal) and 10 degrees of adduction of the left hip (normal 45).  ROM of the right hip showed 90 degrees of flexion, 50 degrees of abduction, and 10 degrees of adduction.  The CI exhibited pain “both active and passive” ROM.

The panel directed attention to its fitness and rating recommendations based on the above evidence. The PEB rated the bilateral LE condition 10%, coded 5099-5003 (analogous to degenerative arthritis), citing the USAPDA pain policy.  The VA rated the left and right femur ORIF condition 30% and 20%, respectively, coded 5255 (impairment of femur), based on the C&P examination one month before separation, citing marked and moderate knee and hip disability, respectively.  

The panel first considered if the each hip and knee, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The panel noted that a bilateral femur condition was profiled, implicated in the commander’s statement, and judged to fail retention standards. However, the STR and VA examination documented that it was greater knee than hip pain secondary to bilateral femur fractures which interfered with the performance of military duties.  The panel members concluded the preponderance of evidence showed the bilateral hip pain condition would not have caused the CI to be referred into the DES or to be found unfit. Panel members then agreed the evidence reasonably justified that the functional limitations of each knee contributed to the CI’s inability to perform his military duties, and accordingly separate disability ratings are recommended.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion, or extension of the knees (5251, 5252, 5260, and 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating for each knee (based on §4.59, §4.40 and §4.45).  The panel noted knee disability secondary to bilateral femur fractures for consideration of ratings under 5255 (femur impairment).  The panel noted bilateral quadriceps atrophy, painful motion of the knees, and an antalgic gait favoring the left leg.  Panel members agreed the evidence supports a rating of 10% for slight right femur impairment and 20% for moderate left femur impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for right and 20% for the left knee conditions.  

BOARD FINDINGS: In the matter of the chronic bilateral LE pain condition, the panel unanimously recommends that each knee be separately adjudicated as follows: an unfitting right knee condition coded 5255 and rated 10%, and an unfitting left knee condition, coded 5255 and rated 20%, both IAW VASRD §4.71a. 

In the matter of the bilateral hip pain condition, the panel unanimously agrees that it cannot recommend a finding of unfit for an additional disability rating.  There are no other conditions within the panel’s scope of review for consideration.  The panel recommends 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	
Left LE Pain	5255	20%	
Right LE Pain	5255	10%	
COMBINED w/BLF	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160416, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015228, 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 30% 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, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure