RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01588
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050113

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E6, Motor Transport Operator, medically separated for “chronic pain, right hip” with a disability rating of 20%.  

CI CONTENTION:  The condition has worsened over time and continues to cause pain.  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 at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  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 -20041216	VARD – 20050329	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Hip	5099-5003	20%	Fractured Right Hip	5299-5255	20%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Right Hip Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI sustained a closed intertrochanteric right hip fracture on 25 January 2004 when he slipped and fell on ice; he underwent an open reduction and internal fixation the same day.  Postoperatively, he was on partial weight-bearing for several months using a walker, but later transitioned to a cane.  

The 25 August 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of right hip pain requiring significant activity limitations.  Physical examination showed an antalgic gait and use of a cane for ambulation.  There was motor weakness (4-/5) of right knee flexion/extension and hip abduction/adduction “with substantial muscle spasm,” but normal ankle and foot strength.  Hip range of motion (ROM) was flexion to 90 degrees (normal 125), with internal and external rotation to 30 degrees and abduction to 45 degrees.  The orthopedic surgeon indicated that the CI required use of a cane for daily ambulation, was unable to run, march, ruck, do sit-ups, sit for prolonged periods, or participate in recreational athletics or household work.  He could stand for 10 minutes at a time and lift up to 25 pounds.  Radiographic (X-ray) studies showed “healed fractures of the radial head as well as proximal femur” and “the lesser trochanter displaced medially with a significant amount of fracture callus.”  

At the 26 May 2005 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported a history of fractured right hip with surgical repair and a back injury from the same fall.  He complained of weakness, tightness and pain down his right lower extremity; paresthesias and difficulty ambulating; pain rated at 5/10 and exacerbated with activity; flare-ups every other day and fatigability; and limitation of repetition with lack of endurance.  Physical examination showed an antalgic gait with limited lumbar flexion to 30 degrees (normal 90).  There was right lower extremity motor weakness (4/5) with spasms and spasticity.  He also had difficulty with ankle dorsiflexion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic right hip pain condition 20%, analogously coded 5099-5003 (degenerative arthritis), citing the US Army Physical Disability Agency pain policy and pain rated as “marked/frequent.”  The VA rated the fractured right hip condition 20%, coded 5299-5255 (femur, impairment of), based on the STR.  The VA additionally rated the CI for a lower back pain condition (40%, coded 5243) and a right leg radiculopathy (10% coded 8520) based on the VA examination 4 months after separation, citing symptoms that significantly overlapped with the right hip condition.  Members first noted there was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion, extension, or thigh impairment for greater than 20% (codes 5251, 5252, or 5253).  The panel next considered alternative rating analogous to code 5255 (femur, impairment of), and deliberated whether the CI’s impairment at separation more nearly represented the next higher 30% criteria for “marked knee or hip disability.”  Members noted that multiple right hip symptoms were considered by the VA for satisfying rating criteria for the CI’s lower back and right leg radiculopathy (VA-diagnosed/rated conditions which were not in scope for PDBR adjudication).  The symptoms documented in the VA examinations and MEB NARSUM substantially overlapped with the symptoms reasonably attributable to the CI’s right hip condition, and were therefore considered and consolidated when determining the CI’s right hip disability rating level.  Given the CI’s hip and knee motor weakness, right leg spasm, pain, required use of a cane, and overall disability picture, the panel adjudged that the disability level at separation more nearly approximated the 30% rating criteria of a marked knee or hip disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the chronic right hip pain condition, coded 5299-5255.  

BOARD FINDINGS:  In the matter of the chronic right hip pain condition, the panel unanimously recommends a disability rating of 30%, coded 5299-5255 IAW VASRD §4.71a.  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	
Chronic Right Hip Pain	5299-5255	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161024, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180001879, 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