RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00594
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040909

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E7, Ammunition Specialist, medically separated for “chronic back pain” and “chronic bilateral hip pain,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends his PEB conditions.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB – 20040625 	VARD - 20050823	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain Status Post Lumbar Fusion…	5241	10%	Lumbar Disc Disease, Slightly Worse on the Right with Radiculopathy, Status Post-Operative Prosthesis	5010-5242	40%	20050613	
Chronic Bilateral Hip Pain	5099-5003	10%	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Back Pain Status Post Lumbar Fusion.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI’s low back condition began in June 2003, when he was involved in a motor vehicle accident.  He underwent a two-level posterior spinal fusion (from L4 thru S1) for herniated discs at L4-5 and L5-S1 causing severe back and leg pain, in November 2003 (10 months prior to separation).  Radiographs showed status post (S/P) posterior spinal fusion from L4 to S1, well fixed with hardware and interbody cage at L4 and L5.  
The 24 May 2004 MEB NARSUM examination, 4 months prior to separation (6 months after surgery), noted complaints of persistent back pain that was exacerbated with standing and bending.  The CI had groin pain (left greater than right) and used a cane to assist with ambulation.  Physical examination showed thoracolumbar range of motion (ROM) with flexion of 80 degrees (normal 90) and combined ROM of 170 degrees (normal 240), with pain in all planes.  There was no tenderness and scars were well healed.  Straight leg raise (SLR) reproduced the CI’s back pain and there were no radicular symptoms.  Strength, reflexes and sensation were normal.  

At the 13 June 2005 VA Compensation and Pension (C&P) examination, 9 months after separation, the CI reported persistent lumbar back pain with frequent radiation down both legs, right greater than left.  Narcotic pain medication provided some relief, and the CI indicated that his back condition precluded his working.  Radiographs showed post-surgical changes, hardware in the lumbosacral area, and sclerosis of the bilateral sacroiliac joints.  Physical examination showed the CI walked slowly with a cane and got on and off of the examination table slowly.  ROM was flexion 30 degrees (normal 90) and combined ROM of 65 degrees (normal 240).  SLR on the right was positive for radicular pain, and right thigh motions caused similar leg and back pain.  SLR on the left was negative.  Dorsiflexion of the feet was slightly weak, but equal.  “The remainder of the motor function is normal…with either decreased effort or weakness bilaterally.”  There was decreased sensation over the right foot and left medial calf.  The diagnoses were lumbar disc disease slightly worse on the right with radiculopathy, status post-operative prosthesis, and arthritis of the sacroiliac joints.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5241 (spinal fusion), citing no neurologic abnormality, and combined thoracolumbar ROM of 170 degrees.  The VA rated the low back condition 40%, coded analogously to 5242, (degenerative arthritis of the spine), citing forward flexion of the thoracolumbar spine of 30 degrees or less.  The panel adjudged that the NARSUM examination had the highest probative value for rating at separation as it was closest to and prior to separation.  The C&P examination was more remote from separation and considered to include post-separation worsening.  The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the NARSUM 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.  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 low back condition.  

Chronic Bilateral Hip Pain.  According to the STR and MEB NARSUM, the CI’s bilateral hip condition began in June 2003, when he was involved in a motor vehicle accident.  Hip radiographs showed mild degenerative changes (arthritis), left greater than right.  The 24 May 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of low back pain and bilateral groin pain (left greater than right).  Physical examination showed bilateral hips with ROM of flexion 80 degrees (normal 125), internal rotation 20 degrees, and external rotation 45 degrees averaged after repetition.  The examiner stated “all measurements give him low back pain, not significant hip pain.”  The diagnosis was “bilateral hip arthritis (mild).”  At the 13 June 2005 spine C&P evaluation, 9 months after separation, the CI reported back pain radiating into the hips and legs.  There was no general or joints/hips C&P examination in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB combined the left and right hip conditions under a single disability rating, coded analogously to (arthritis, degenerative) and rated 10% with application of the US Army Physical Disability Agency 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.  The VA did not address either the left or right hip conditions; however, hip pain was considered in their 40% rating of the back (above).  

The panel deliberated if either hip condition alone, or combined, would have been separately unfitting.  The bilateral hip condition was profiled and judged to fail retention standards, but the commander’s statement noted only the back condition.  The significant L3 profile restriction were not separable between the back condition (“LBP post-op”) and the “bilateral hip arthritis” diagnoses, nor between the left and/or right hip.  Since undue speculation would be required to conclude that impairment from either hip joint would not have unacceptably interfered with the performance of military duties, members agreed that each hip was reasonably justified as separately unfitting.  The panel then considered its rating recommendation for the unfitting left and unfitting right hip conditions at the time of separation.  There was no compensable limitation of hip motion under codes 5250 thru 5253 for either the right or left side.  Each hip had X-ray evidence of arthritis, and the NARSUM indicated each hip had painful motion.  The panel adjudged that there was sufficient evidence of painful motion causing functional loss (based on §4.59, §4.40 and §4.45), and that the right hip arthritis and left hip arthritis conditions therefore each warranted a 10% rating coded 5099-5003.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), for the chronic bilateral hip pain (bilateral arthritis) condition, the panel recommends an unfitting right hip with a disability rating of 10% and an unfitting left pelvic fracture with a disability rating of 10%, each coded 5099-5003.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral hip condition, the panel unanimously recommends that each joint be separately adjudicated as follows:  an unfitting right hip condition coded 5099-5003 and rated 10%, and an unfitting left hip condition, coded 5099-5003 and rated 10%, both IAW VASRD §4.71a.  There are 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 Back Pain Status Post Lumbar Fusion…	5241	10%	
Chronic Bilateral Hip Pain	Left Hip 	5099-5003	10%	
	Right Hip	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180005744, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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

Sincerely,					      
Enclosure