RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxx BRANCH OF SERVICE: Army

CASE NUMBER: PD1100831 SEPARATION DATE: 20021017

BOARD DATE: 20120524

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (74B10/Information Systems Operator Analyst), medically separated for chronic bilateral hip pain. Despite therapy, she did not respond adequately to perform within her military occupational specialty (MOS) or meet physical fitness standards. She was issued a permanent L3 profile and underwent a Medical Evaluation Board (MEB). “Chronic bilateral hip pain” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions appeared on the MEB’s submission. The PEB adjudicated the bilateral hip condition as unfitting, rated 10% with specified application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION: “Fibromyalgia.”

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The fibromyalgia condition, noted in the contention, is not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for the Correction of Military Records (ABCMR).

RATING COMPARISON

*STR is Service Treatment Record; there was no musculoskeletal VA exam proximate to separation. The VA exam nearest separation (20030123) was for erosive gastritis. The first VA hip exam was dated 20110817.

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for another condition (fibromyalgia) that was never documented at the time of separation or by the Department of Veterans’ Affairs. If it is the CI’s opinion that a diagnosis or medical error was responsible for her incorrect rating, with the implication that the disability rating should be for fibromyalgia instead of chronic bilateral hip pain; that remains outside of the scope of the Board. It must be noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to allegations regarding suspected improprieties, faulty medical care, or missed diagnoses. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB disability ratings and fitness determinations as elaborated above. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. Redress in excess of the Board’s scope of recommendations must be addressed by the ABCMR and/or the United States judiciary system.

Chronic Bilateral Hip Pain Condition. The CI had an insidious onset of hip pain that began in basic training while road marching; and no specific history of trauma. Therapy including Celebrex provided some relief, with flares requiring narcotic pain medication. Physical therapy and orthopedic consultation were not beneficial. At the MEB exam, the CI reported chronic bilateral hip pain with flares and “the hips are swollen and painful most of the time.” She also related back pain numbness or tingling in her toes, and wrist and foot problems. The MEB physical exam noted asymptomatic pes cavus (feet), “full range-of-motion (ROM) of her hips”, no focal neurologic deficits, normal strength and reflexes. Magnetic resonance imaging (MRI) and bone scan of the hips in December 1999 were negative for acute hip or sacroiliac joint pathology. The referenced orthopedic consult indicated some discomfort on deep palpation over the iliopsoas tendon bilaterally and symmetric hip ROM without restriction. Neurologic, motor and reflex exams were normal. The examiner found no specific defects or pathological entity which could be identified for the source of the CI’s symptoms, but indicated that symptoms may be secondary to her underlying collagen make-up allowing increased hypermobility. There was no evidence of surgical indications. The CI’s L3 profile was for bilateral hip pain and lower back pain and allowed an “alternate aerobic event for APFT.” The commander’s statement mirrored the restrictions of the profile without specifying a medical condition, but noted “duty performance is excellent in a garrison environment during the limited timeframe she is at her place of duty, her injury keeps her away from her job for a large part of every week due to medical appointments, rehab, and other medical related appointments.”

There was no hip or joints VA Compensation and Pension (C&P) exam proximate to separation. The VA rated the military record and exams at 10% for a combined low back and bilateral hip pain coded 5003. The closest VA hip exam was over 8 years remote from separation. Exam indicated tenderness of each hip with goniometric ROMs without limitation or decrease from VA normal ROMs.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the hips at 10% specifying application of the pain policy, analogously to 5003. Absent the pain policy, direct 5003 coding would require imaging evidence of arthritis. However, coding analogously to 5003 or coding using any of the codes from 5019 (bursitis) through 5024 (tenosynovitis) which do not require abnormal imaging would apply the same criteria as 5003 and provide no rating advantage. There was no objective evidence of painful motion or pain-limited motion to justify application of VASRD §4.59 (painful motion) to rate each joint separately. The 10% criteria for involvement of two or more major joints analogous to 5003 was met. There were no incapacitating exacerbations to justify application of the higher 20% criteria which requires occasional incapacitating exacerbations. There is no route to a rating higher than 10% under any applicable code and no coexistent pathology which would merit additional rating for the bilateral hip pain condition under a separate code. Thus, neither the PEB choice of VASRD code, nor application of the USAPDA pain policy was detrimental to arriving at the highest achievable rating IAW VASRD §4.71a. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s 10% adjudication for the bilateral hip pain condition.

BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on the USAPDA pain policy for rating the bilateral hip was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral hip condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110928, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXX, AR20120011837 (PD201100831)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.

This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl XXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA