RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXX	CASE:  PD-2020-00122
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040317

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Voice Interceptor, medically separated for “chronic mechanical low back pain (LBP)” with a disability rating of 10%.  

CI CONTENTION:  Her condition is worse than the VA ratings.  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 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 - 20040121	VARD - 20050204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5299-5237	10%	Lumbosacral Strain	5237	10%	20041029	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10% 	

ANALYSIS SUMMARY:  

LBP (Subsuming Right Pelvis and Hip Pain).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), in 1999 the CI suffered a fall in basic training and a bone scan revealed a pelvic fracture (right inferior pubic ramus, non-displaced, possibly a stress fracture).  She developed concurrent complaints of LBP, right pelvic/groin pain, and right hip pain commencing with that incident.  According to the NARSUM she was medically evacuated from a 2003 deployment to Iraq for intractable LBP, and available STR provider notes do not further clarify clinical details leading to the evacuation.  Additional complaints of right pelvic and hip pain, however, were noted in numerous STR entries after redeployment.  Imaging studies (lumbar and pelvic X-rays, pelvic MRI) during that period were normal.  

The CI underwent multiple consultations (orthopedics, neurology, gynecology, and urology), but the specific etiology or etiologies of her complaints was not determined.  Orthopedic opinions regarding the cause of the back pain were lumbar and/or right sacroiliac (SI) strain.  A specific orthopedic consult directed at the hip pain suggested a “spine component” with additional bursitis or tendonitis of the hip.  A neurology consultant opined that it was lateralized back pain radiating into the hip.  Multiple neurological examinations were normal and surgery was not indicated.  Provider entries in the STR documented grossly normal thoracolumbar range of motion (ROM), a normal gait, a normal spinal contour, and no indication of incapacitating episodes.  The hip examinations in evidence documented grossly normal ROM with none indicating any significant limitation, but there was documentation of painful motion by several providers.

The 5 December 2003 MEB NARSUM examination, 3 months prior to separation, documented “continuous ... slight” low back and right pelvic/hip pain that prohibited running and multiple general soldiering requirements.  The physical examination recorded right SI tenderness, no note of spasm, no note of abnormal gait or spinal contour, and normal neurological findings.  A provocative maneuver of the hip (Faber’s) was negative and no other joint findings were noted.  The MEB’s DA Form 2808 physical examination on the same day documented right SI tenderness and a grossly normal extremity examination.

The NARSUM referenced goniometric thoracolumbar ROM measurements conducted by physical therapy (PT) a day earlier.  The PT examiner documented flexion to 90 degrees (normal) and combined ROM of 240 degrees (normal).  Nearly all measurements were in excess of the VASRD normal ratable values, and painful motion was not addressed.  Formal ROM measurements for the hip were not in evidence.  The NARSUM documented a diagnosis of “chronic mechanical low back pain and right hip pain (tendonitis),” and this was recorded verbatim as a single diagnosis on the MEB’s DA Form 3947 submission.  The LBP was the only condition listed on the profile and the only one identified in the commander’s performance statement.  

At the 29 October 2004 VA Compensation and Pension (C&P) examination, 7 months after separation, the CI complained of daily LBP (mentioning occasional “sciatica” without elaboration) rated 7/10 that limited walking to 2 miles and lifting to 30 pounds.  A separate complaint of pelvic or hip pain was not addressed.  The physical examination recorded a normal gait and spinal contour, no tenderness or spasm, and normal neurological findings.  Measured thoracolumbar ROM was normal in all planes, specifying the absence of painful motion and no ROM degradation with repetition.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar condition 10%, analogously coded 5237 (lumbosacral strain), citing localized tenderness (a 10% criterion of the VASRD §4.71a spine rating formula).  The PEB’s DA Form 199 determination did not separately address pelvic or hip pain; thus, the panel presumed that it was subsumed in the lumbar rating.  The VA also rated the lumbar condition 10% under code 5237, based on the C&P examination and citing combined ROM of 210 degrees (in conflict with above C&P evidence).  The VA conferred no rating for pelvic or hip pain.  Per available VA records, a claim for right pelvic and right SI pain was not addressed until 2013 (9 years after separation), and resulted in a separate 10% rating for the hip with SI dysfunction additionally subsumed in the 10% lumbar rating, effective from 2012.

The panel deliberated at length whether the right pelvis and/or hip pain was more appropriately unbundled from the PEB’s consolidated rating and recommended as a separately unfitting and service-ratable condition.  The final consensus of panel members was that it was not sufficiently justified to do so.  From a clinical perspective it was impossible to satisfactorily identify separate pathologies, as evidenced by the varied medical opinions noted above, and it was fair to treat the condition(s) as a single pain complex with the same onset and clinical course of all components.  Although the NARSUM and MEB submission described back and hip pain, it was treated as a single diagnosis and submitted as a single condition failing retention standards.  The right hip and/or pelvic and/or SI pain was not identified on the profile or by the commander.  Panel consensus therefore was that it was impossible to distinguish separately unfitting components of the same overall pain without an unacceptable degree of speculation.  Furthermore, even if separately unfitting conditions were conceded, the assignment of separately ratable criteria would be dubiously compliant with VASRD §4.14 (avoidance of pyramiding).

After the above consensus that unbundling and separate ratings were not justified, the panel turned to the appropriate rating of the lumbar condition, with subsumed right pelvic/hip pain, under criteria of the VASRD §4.71a spine formula.  The panel majority agreed that there was no evidence for compensable ROM limitation or for abnormal gait or spinal contour that would justify a rating higher than 10%.  There was no documentation of incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all 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 lumbar condition (subsuming the right pelvis and hip component).  

BOARD FINDINGS:  In the matter of the lumbar condition (subsuming the right pelvis and hip component) and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submits the appended minority opinion.  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:

	

MINORITY OPINION:  The minority voter dissents from the majority conclusion that this case was not subject to unbundling, as applied to numerous PDBR recommendations for equivalent cases since the Board’s inception.  A preponderance of evidence identified separate conditions: low back pain (subsuming right SI dysfunction IAW VASRD §4.66 [sacroiliac joint]), and right hip pain (subsuming residuals of pelvic fracture IAW VASRD §4.67 [pelvic bones]).  These two conditions were inappropriately consolidated in the DA Form 3947 MEB submission, and the right hip/pelvic pain was not addressed in the PEB’s DA Form 199 decision.  Whether the latter was subsumed in the PEB’s single rating, as per the majority treatment, or unfairly ignored is subject to speculation; nor, was there any indication by the PEB that it was based on combined effect.  Whatever the PEB’s rationale, however, it remains that two clinically and anatomically distinct conditions resulted in a single service disability rating.  The minority strongly asserts that unbundling was thereby mandated in this case.  

The majority conclusion that this was “a single pain complex” rather than separate conditions is overly speculative, challenged by ample evidence to the contrary, and fails to satisfy the VASRD reasonable doubt standard.  As quoted in the record of proceedings, the NARSUM combined two diagnoses separated by “and,” from which the majority inferred that the examiner intended them to represent a single condition.  The fact that the examiner made two separate diagnoses was strongly corroborated by the DD Form 2808 medical examination for the MEB, performed by the NARSUM provider on the same date.  The Item 77 “summary of defects and diagnoses” sequentially lists, on separate lines, “chronic mechanical low back pain” followed by “chronic right hip tendonitis.”  The presence of separate diagnoses is further confirmed by the fact that mechanical strain of the back is clinically distinct from tendonitis of the hip.  The NARSUM construct for the diagnostic nomenclature (incorporating “and”) flowed directly to the MEB’s DD Form 3947 submission, again by the same provider, thus the same arguments apply.  

At least seven STR provider entries were identified, commencing concurrently with redeployment, which differentiated spine versus hip joint pathology.  These are not belabored here for the sake of brevity, but details are available on request.  These included an orthopedic opinion of 3 December 2003 that there was “some component of greater trochanteric bursitis,” lending strong support for a hip condition unrelated to the spine condition.  The minority premise that separate conditions existed, which should have been unbundled and considered for separate ratings, is compellingly supported by the above facts.  It should therefore be conceded based on reasonable doubt and the “fair and equitable” standard of DoDI 6040.44.

Having so concluded, the minority asserts that each of the conditions is reasonably justified as separately unfitting per the PDBR standard for unbundling PEB-combined conditions.  Separately unfitting conditions were implied by the MEB’s AR 40-501 citation for the failure to satisfy retention standards.  The referenced section, paragraph 3-41e, specifies “general and miscellaneous conditions ... [that] ... (individually or in combination) result in interference with satisfactory performance of duty ....”  Although the profile only listed LBP, it was generated by an orthopedist who had been consulted solely for back pain (STR entry of 23 October 2003, profile dated 6 November).  It preceded the second orthopedic consult from a higher level facility on 3 December (see above) that also addressed the hip pain, as well as the subsequent NARSUM and MEB physical examination.  The minority thus asserts that the profile was outdated and not sufficiently probative to the date of separation.  The commander’s statement, also referring only to LBP, was dated 2 December 2003.  It was thus in response to the existing profile and preceded the subsequent MEB evidence, thereby subject to the same probative value mitigation.  The CI’s pelvic/hip pain was clearly operant at the time of the commander’s statement, and all limitations cited by the commander would have been affected by both conditions, with none specific to the spine only.  The minority firmly maintains, therefore, that the preponderance of evidence indicates it was as least likely as not that the lumbar and right pelvic/hip limitations each contributed and prevented the CI from satisfactorily performing the duties of her MOS; therefore, both conditions are reasonably justified as unfitting.

Having satisfactorily established that separate service-ratable conditions were present, the minority asserts that each of them satisfied VASRD §4.71a standards for a minimum 10% rating.  Although the majority raised the issue of pyramiding in that regard, that principle applies only to shared criteria.  The spine rating formula specifies tenderness as a 10% criterion, with or without ROM limitation or other criteria.  All joint ratings are subject to a minimum 10% rating for painful motion IAW VASRD §4.56.  As documented in these proceedings, separate spinal tenderness and hip painful motion were in evidence.  Neither of these represents a shared criterion that would constitute pyramiding.  The minority does not find evidence in support of a rating higher than 10% for either condition.

The Secretary is respectfully requested to accept the minority recommendation that the PEB-combined lumbar and right pelvic/hip condition be rated as separately unfitting conditions, and the CI’s prior determination be modified effective as of the date of the prior medical separation, as follows:

CONDITION	VASRD CODE	PERMANENT RATING	
Myofascial and Sacroiliac Strain, Lumbar Spine	5237	10%	
Fracture Residuals with Tendonitis, Right Hip	5024	10%	
COMBINED	20%	

AR20200009919, 

Dear XXXXX

	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