DEPARTMENT  OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

IN REPLY REFER TO

1850
CORB:003
12 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards 
PD-2017-02615

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr dtd 8 Feb 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (refere ce (b)) to the Department of the Navy of 15 October 2019 for appropriate  action.

2.	On 31 January 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-02615 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20061231

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Administrative Clerk, medically separated for “iliopsoas tendonitis and bursitis” with a disability rating of 10%.

CI CONTENTION: “My PTSD [post-traumatic stress disorder], hips, ankles, IBS [irritable bowel syndrome] and migraines are still issues for me and the VA gave me a rating for it all.” 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 - 20061108	VARD - 20080603	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Iliopsoas Tendonitis and Bursitis (Right Hip)	5099-5003	10%	Iliopsoas Tendonitis with Bursitis, Right Hip, Post-Operative	5019-5024	10%	20080128	
PTSD	Cat III	PTSD	9411	30%	20080125	
GERD	Cat III	IBS with GERD	7319-7346	10%	20080128	
Migraine Headaches	Cat III	Migraine Headaches	8100	10%	20080128	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:

Iliopsoas Tendonitis and Bursitis. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered an onset of right hip pain from a motor vehicle accident  in  June  2001.  Imaging  studies  (X-ray,  bone  scan,  MRI)  were  normal  with  just  an

incidental bone spur noted on a 2005 X-ray. She underwent surgery (iliopsoas tendon release) for persistent pain in May 2004, but it did not result in significant improvement. There was documentation in STR provider notes of painful motion and a slightly antalgic gait. There was no indication of significant range of motion (ROM) limitation and no documentation of other VASRD- ratable findings.

The 9 May 2006 MEB NARSUM examination, 8 months prior to separation, noted complaints of constant right hip pain rated 7-10/10 that was aggravated by stair climbing and prolonged standing or sitting, and that prohibited running and multiple other physical requirements for a Marine. The physical examination recorded tenderness, normal strength, hip flexion to 90 degrees (normal 125), external rotation to 80 degrees (normal 45), and painful motion.

At the 28 January 2008 VA Compensation and Pension (C&P) examination, 14 months after separation, the CI reported chronic pain rated 6/10 with subjective weakness, giving way, and early fatigue. She related a walking tolerance limited to “several hundred feet” and a standing tolerance of “five to ten minutes.” The physical examination recorded a “slightly” antalgic gait (no assistive device) and the absence of crepitus or tenderness. Measured ROM was flexion to 100 degrees, extension to 5 degrees (normal 20), external rotation to 25 degrees, and abduction to 30 degrees (normal 45), specifying painful motion in all planes.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right hip condition 10%, coded 5099-5003 (analogous to degenerative arthritis). The VA also rated the condition 10%, coded 5019-5024 (bursitis and tenosynovitis), based on the C&P examination and citing painful motion.

There was no ROM limitation in evidence under the applicable codes (5251, 5252, and 5253) that would support a rating higher than 10%. There was no ankylosis (5250) or flail joint (5354) that would support a higher rating under the remaining VASRD §4.71a joint codes. The panel considered whether the disability in evidence merited analogous rating under code 5299-5255 (femur, impairment). Panel member consensus, however, was that the analogous application of this fracture code (complications of nonunion or malunion) was not sufficiently justified by VASRD §4.20 (analogous ratings), given that this case satisfies compensable criteria under more applicable joint codes. After due deliberation, considering all the evidence and mindful of VASRD
§4.3 (reasonable doubt), the panel majority determined that there was insufficient cause to recommend a change in the PEB adjudication for the right hip condition.

Contended PEB Condition: PTSD. The CI was diagnosed with PTSD following significant stressors (rape, abuse, life threats) in 2003. Her symptoms resolved with treatment at that time, but recurred in early 2005. According to a 15 August 2006 psychiatric addendum to the NARSUM), after an additional 6 months of treatment her symptoms resolved and did not recur. The addendum documented the absence of any significant mental health (MH) symptoms at that time, along with no current psychiatric medications or treatment, a normal mental status examination, and a Global Assessment of Functioning (GAF) score of 70 (slight to mild impairment). The MEB psychiatrist opined that there was no MH impairment prohibiting continued military service. The commander’s non-medical assessment (NMA) did not note any MH symptoms or conditions, and documented that the CI was fully capable for administrative duties. There was no STR evidence for any duty restrictions due to MH impairment.

The panel’s main charge is to assess the fairness of the PEB determination that PTSD was a Category III condition (not separately unfitting). All members agreed there was no performance- based evidence for any MH impairment that significantly interfered with satisfactory duty performance at the time of separation. This was compellingly corroborated by the MEB psychiatrist  and  the  commander.    After  due  deliberation,  the  panel  concluded  there   was

insufficient cause to recommend a change in the PEB’s Category III determination for PTSD, so no additional service disability rating can be recommended.

Contended PEB Conditions: Gastroesophageal Reflux Disease and Migraine Headaches. There was no STR evidence of significant symptoms due to GERD. There was a March 2005 entry for vomiting and diarrhea (consistent with viral gastroenteritis) and there were no other provider notes addressing gastrointestinal complaints. The NARSUM reported “frequent heartburn controlled with over-the-counter medications [and] chronic diarrhea with several loose stools per day.” There was likewise no STR evidence of any significant clinical activity for migraine headaches. There was an entry from February 2005 that documented a history of migraine headaches for several years that were not responding to acetaminophen, and the provider prescribed a rescue medication (Imitrex spray). There were no subsequent entries for continuing headache complaints or acute treatment. The NARSUM documented “several headaches per month ... controlled with medication,” although there were no migraine-specific agents listed under current medications. There was no STR evidence for any limited duty or profiles for either of these conditions. The commander’s NMA did not mention either condition, did not document any performance limitations attributable to either one, and did not note any work loss due to either of them.

As with PTSD, the panel’s main charge is to assess the fairness of the PEB Category III adjudications for GERD and migraine headaches. All members agreed that, although both conditions were likely symptomatic at separation, there was no indication that either of them was associated with significant clinical acuity. There was no performance-based evidence from the record that either of them significantly interfered with satisfactory duty performance at the time of separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB’s Category III determinations for GERD or migraine headaches, so no additional service disability ratings are recommended.

BOARD FINDINGS: In the matter of the right hip condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication. The single voter for dissent submitted the appended minority opinion. In the matter of the contended PTSD, gastroesophageal reflux disease, and migraine headaches, the panel recommends no change from the PEB determinations as not unfitting. There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends there be 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 20170310, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record	

MINORITY OPINION:

The minority member disagrees with the majority judgment that a higher rating for the right hip condition was not justified by analogous application of code 5255 as noted in the above proceedings. That option (elaborated below) is commonly exercised by the VA, and has been applied in prior service PEB determinations and in precedent Physical Disability Board of Review recommendations.

Although the language of code 5255 is specific for femur fracture complications, it provides for rating of contiguous hip disability. It is justified by VASRD §4.7 (higher of two evaluations), and comports with VASRD §4.20 (analogous ratings), for rating of functional limitation not fully captured by §4.71a joint rating criteria. Code 5255 offers ratings of 20% for “moderate” and 30% for “marked” hip disability. The minority position is that the disability in evidence (chronic pain with persistent gait disturbance, limitations on prolonged standing and ambulation that would impose significant constraints on occupational choices, etc.) merited application of code 5299- 5255 for more favorable rating. The minority strongly asserts that it is fair to characterize the hip disability at separation as moderate (20%) while conceding that the disability was not severe enough to be reasonably characterized as marked (30%).

The Secretary is respectfully requested to consider the minority recommendation that the CI’s prior determination be modified as follows, effective the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Tenosynovitis and Surgical Residuals, Right Hip	5299-5255	20%