RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00655
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040511

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E3, Medical Specialist, medically separated for “chronic low back pain” and “chronic bilateral hip pain,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  Back condition has worsened.  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 - 20040325	VARD - 20050602	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Small Disc Protrusion L-5-S1 	5243	40%	20041210	
Chronic Bilateral Hip Pain	5099-5003	10%	Right Hip Condition	5299-5250	NSC	20041210	
			Left Hip Condition	5299-5250	NSC	20041210	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  	

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in November 2003 after she fell from the top bunk.  Lumbar spine X-rays were normal, but MRI showed small disc protrusions at L5-S1, L3-4, and L4-5.  On January 2004, electrodiagnostic studies were normal.  During the February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808) 3 months prior to separation, the CI reported persistent pain.  Physical examination showed flexion of 80 degrees (normal 90) and combined range of motion (ROM) of 230 degrees (normal 240).  Tenderness was present, but motor strength, reflexes, heel/toe walk and straight leg raise (SLR) (test for herniated disc) were all normal.  The 26 February 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of left intermittent radicular symptoms for which she used crutches.  Physical examination was recorded on DD Form 2808 and reported above.  

At the 10 December 2004 VA Compensation and Pension (C&P) evaluation, 7 months after separation, the CI reported constant pain that traveled down the left leg and through the buttock.  The pain was elicited by physical activity, sitting, standing or laying down.  Physical examination showed no complaints of radiating pain on movement.  Muscle spasm and tenderness were not present.  SLR was negative.  ROM was flexion of 70 degrees with combined ROM of 205 degrees.  ROM was limited by pain and lack of endurance, with pain having the major impact on movement.  No ankyloses was noted.  There was no sign of intervertebral disc syndrome present.  

At the 25 April 2005 C&P examination, 11 months after separation, the CI noted complaints of constant low back pain with radicular symptoms to below the knee.  The examiner noted use of crutches with point tenderness and significant pain behaviors during the evaluation.  Forward flexion of the lumbar spine was to 60 degrees, extension to 10 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5237 (analogous to lumbosacral strain), citing no neurological abnormality and forward flexion of 80 degrees.  The VA rated the chronic low back pain condition 40%, coded 5243 (intervertebral disc syndrome), based on the VA examination 11 months after separation, citing an estimate of overall functioning which more closely approximated the 40% level.  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 as reported on the MEB and VA examinations proximate to separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Chronic Bilateral Hip Pain.  The PEB combined the bilateral hip condition as a single unfitting condition coded analogously to 5003 (degenerative arthritis) and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  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 VASRD code 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.  

According to the STR and MEB NARSUM, the CI’s bilateral hip pain began in January 2004.  Multiple subsequent X-ray studies and a bone scan were normal.  The 26 February 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of bilateral hip pain, causing an inability to run.  Physical examination showed tenderness in the medial groin area and full ROM in both hips.  There was no differentiation as to the right or left hip and all references described the condition as a “bilateral” hip condition.

At the 10 December 2004 C&P evaluation the CI reported sharp pain, popping and cracking of hips and radiating pain.  No periods of incapacitation were reported.  Physical examination showed bilateral flexion to 125 degrees (normal), extension to 30 degrees (normal 20), adduction to 25 degrees (normal 45), abduction to 45 degrees (normal), external rotation to 60 degrees (normal 45), and internal rotation to 40 degrees.  Again, there was no differentiation as to the right or left hip condition.

At the 25 April 2005 VA examination, 11 months after separation, the CI noted complaints of daily, intermittent, bilateral hip pain described as aching and stabbing but without instability or weakness.  Physical examination showed bilateral flexion to 125 degrees, extension to 30 degrees, abduction to 45 degrees, external rotation to 60 degrees and internal rotation to 40 degrees.  No differentiation was made as to the right or left hip.

The panel first considered if the bilateral hip condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Both hips were noted to fail retention standards and both were profiled.  However, the commander’s statement did not implicate either hip and three separate radiographic studies of the bilateral hips were normal.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled left and right hip conditions were reasonably considered separately unfitting.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral hip condition 10%, coded 5099-5003, citing the USAPDA pain policy.  The VA declined to rate either hip, citing lack of a chronic condition.  There was no limitation of motion in either hip to support a 10% rating under any applicable code at the time of separation.  The Board concluded that the evidence did not support a rating higher than the 10% adjudicated by the PEB for the bilateral hip condition.  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 bilateral hip condition. 

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the bilateral hip condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170106, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004728, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,					      
Enclosure