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AF | PDBR | CY2013 | PD-2013-01486
Original file (PD-2013-01486.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-01486
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20150122
SEPARATION DATE: 20040630


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Basic Marine) medically separated for a right thigh and hip conditions. These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was referred for a Medical Evaluation Board (MEB). Right hip abscess, right hip abscess with pyomyositis, chronic right hip and thigh pain were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded right foot abscess for PEB adjudication. The Informal PEB adjudicated right thigh abscess with pyomyositis as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD). The right hip abscess , and chronic right hip and thigh pain conditions were determined to be C ategory II (contributing to unfit); and the right foot abscess condition was C ategory III (not separately unfitting and does not contribute to the unfitting condition). The CI made no appeals and was medically separated.


CI CONTENTION: “I believe my rating should be changed due to the severity and on-going effects of my disability. My ability to obtain and maintain employment has been severely limited. The long term effects of my disability were not known at the time of my separation. My VA rating was 100% at the time immediately after my separation in 2004. It has since been lowered to 50% after years of physical rehabilitation. To this day I still suffer from lack of muscle strength, range of motion, and have pain in my hip. This has effected my ability to work as shown by my current status in the Vocational Rehabilitation Program. – Right Thigh Abscess with Pyomyositis” [sic]


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the 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. Any conditions outside the Board’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/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board 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, operating under a different set of laws. The Board 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 IPEB – Dated 20040423
 VA* - (3 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Right Thigh Abscess with Pyomyositis 5317 0% S/P Right Hip Abscess w/ possible osteomyelitis, Right Thigh Abscess Vastus Intermedius and Iliacus, and S/P Right Foot Abscess, w/ Anesthesia and Analgesia Lateral Femoral Cutaneous Area Right Thigh 5255-5314 100% 20040401
Right Hip Abscess, and Chronic Right Hip and Thigh Pain Category II
Other x 1 (Not in Scope)
 Other x 0
Combined: 0%
 Combined: 100%
*Derived from VA Rating Decision (VARD) dated 20040902 (most proxima te to date of separation (DOS))


ANALYSIS SUMMARY:

Right Thigh Abscess with Pyomyositis and Chronic Right Hip and Thigh Pain. The CI initially presented with right greater than left hip pain on 19 December 2003. Physical examination revealed right thigh tenderness to palpation, skin redness at the right hip area, and extensive swelling. A bone scan performed at that time demonstrated stress fractures in the left hip area. A magnetic resonance imaging study dated 30 December 2003 revealed large abscesses in the right lower extremity from the hip to the knee with possible right femur involvement. The CI underwent surgical drainage of the abscesses on 29 December 2003. X-ray evaluation dated 17 January 2004 (approximately 3 weeks after drainage) demonstrated worsening of the bone loss in the right femoral head, neck, and upper shaft. The CI was evaluated by infectious diseases diagnosed with an infection (staphylococcus aureus) of the thigh muscles and the sacroiliac (SI) (sacral spine and hip) joint. He underwent physical therapy and a 6 weeks course of antibiotic therapy. An infectious disease evaluation after the course of intravenous antibiotics documented diagnoses of pyomyositis (muscle infection/inflammation) and SI septic arthritis.

At the MEB Medical Examination (DD Form 2808) dated 2 March 2004, approximately 3 months prior to separation, the CI reported pain with walking, but no right hip or thigh pain at rest. He reported right thigh numbness since his surgery and that he could not move his right leg in all directions as well as he could the left. The physical examination revealed a 12 inch surgical scar with keloid formation on the right hip and thigh, a mildly abnormal gait, and poor thigh muscle tone; right greater than left.

The narrative summary (NARSUM) examination dated 16 March 2004, approximately 3 months prior to separation, documented full hip and knee range-of-motion (ROM), decreased right quadriceps, iliopsoas, and hamstrings motor strength, and “quivering” of the right thigh muscles when attempting the straight leg raise.

At the VA Compensation and Pension (C&P) examination, approximately 3 months prior to separation, the CI reported decreased motion in the right hip, a limp since his surgery, and persistent right hip and thigh pain. The physical examination revealed an abnormal gait, nontender right hip and thigh scars with keloid formation, and decreased right hip ROM. The examiner noted that the CI was still on oral antibiotics and recommended reevaluation after the treatment was completed to evaluated possible improvement.

At the VA C&P examination approximately 17 months after separation, the CI reported severe right hip and thigh pain with decreased sensation over the right thigh. The examiner documented that the CI had a right hip fluid pocket drained the end of May to early June 2005 without the need for additional antibiotic treatment. The physical examination was significant for continued right hip limitation of motion, 1/5 right thigh muscle strength, and clonus (muscle quivers) with flexion against resistance. The examiner opined that the outcome of the CI’s functional disability could not be determined at the time of the examination.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Hip (Thigh) ROM
(Degrees)
 NARSUM 3.5 Mo. Pre-Sep
(20040316)
VA C&P 3 Mo. Pre-Sep
(200 40 40 1)
VA C&P 14.7 Mo. Post-Sep
 (20050914)
Actual Exam
~8.9 mos Post-Sep
(20050323)
Flexion (125 Normal)
 FROM 30 (knee straight)
 45 (knee bent)		 90 (60 with 3 repetitions)
Extension (20)
 “ Not recorded 0 (0 with 3 repetitions)
External Rotation (45)
 “ 30 Not recorded
Abduction (0-45)
 “ 30 Not recorded
Adduction (45)
 “ 15 Not recorded
Comment
 4/5 muscle strength, muscle fatigue (MEB), pain with use 4/5 muscle strength right thi gh , l eft hip normal ROM and muscle strength , x- rays sho w right femoral head bone loss 1/5 muscle strength,
4+ clonus, chronic edema
§4.71a Rating
 10 % 10% 10% / 40%
IAW §4.59 (Painful motion)

The Board directed attention to its rating recommendation based on the above evidence. The PEB adjudicated the right thigh abscess with pyomyositis as unfitting. The right hip abscess and chronic right hip and thigh pain were adjudicated as Category II conditions. The PEB rated the unfitting condition at 0%, coded 5317 ( muscle G roup XVII ) . The VA combined the right hip and thigh condition described as “ status post right hip abscess with possible osteomyelitis, right thigh abscess of vastus intermedius and iliacus … ” as a single disability. The VA determined that the CI’s condition was not stable; he was still on oral antibiotics ; and awarded a pre-stabilization rating of 100 % , coded 5255-5314 ( femur impairment of- muscle G roup XIV ) . The Board’s first deliberated whether the Category II conditions (right hip abscess and chronic right hip and thigh pain) could be reasonably justified as separately unfitting and ratable. The Board noted that there was no evidence of continued infection or abscess formation. The primary residual of the infection was right hip and thigh pain with mildly decreased motor strength. Members agreed that the subsumed Category II conditions were not reasonably justified as separately unfitting; nor would a separate rating be achievable without violation of VASRD §4.14 (avoidance of pyramiding). The Board noted that the VA categorized the right hip and thigh condition as unstable; however, Board members considered that four months prior to separation the CI was released from orthopedic care and had completed a course of physical therapy. At the NARSUM, 3 months prior to separation, the CI ambulated without the use of assistive devices and was determined to have reached “maximum benefit from outpatient treatment.” The Board determined that the CI’s condition was stable for fitness determinations.

The Board considered whether there was evidence supporting a higher than 0% rating for the right hip abscess with pyomyositis condition. The Board considered ratings under VASRD codes 5021 (myositis); 5252 (thigh limitation of motion); 5009 (arthritis, other [septic]); and 5399-5314 (Group XIII, anterior thigh group). The Board determined that VASRD code 5021 was not applicable because the NARSUM and VA peripheral nerves examinations documented no evidence of infection or active myositis. The Board noted that the thigh limitation of motion to 45 degrees met criteria for a 10% rating under VASRD code 5252. The Board considered if criteria were met for a higher than 10% rating under the remaining coding options. The CI had a diagnosis of SI (right hip) septic arthritis (VASRD code 5009) rendered by infectious diseases. The primary residuals of the infection were right hip and thigh pain, mildly decreased motor strength, and limitation of hip flexion. VASRD code 5009 is rated using the criteria for rheumatoid arthritis. The Board determined that the initial infectious process (December 2003), continuance of oral antibiotic treatment, and VA drainage of an abscess (May 2005) within 12 months of separation met criterion of one to two exacerbations a year in a well-established diagnosis for a 20% rating under VASRD code 5009. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right thigh abscess with pyomyositis 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the right thigh abscess with pyomyositis condition, the Board unanimously recommends a disability rating of 20%, coded 5009 IAW VASRD §4.71a. In the matter of the contended right hip abscess and chronic right hip and thigh pain conditions, the Board unanimously recommends no change from the PEB determinations as Category II conditions. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Right Hip Arthritis status post Right Hip and Thigh Abscess with Pyomyositis 5009 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130920, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record









                                   
XXXXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review
MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoD I 6040.44

(b) PDBR ltr dtd 1 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 1 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 8 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(e) PDBR ltr dtd 19 May 15 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a} I approve the recommendations of the Physical
Disability Board of Review set forth in references (b) through (d).

2. The official records of the following individuals are to be corrected to
reflect the stated disposition:

a. XXXXXXXXXXXXXXXXXX former USN: Entitlement to disability
severance pay with a disability rating of 10 percent (increased from 0 (zero)
percent) effective date of discharge.

b. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability
severance pay with a disability rating of 20 percent (increased from 10
percent) effective date of discharge.

c. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability
severance pay with a disability rating of 20 percent (increased from 0 (zero)
percent) effective date of discharge.

d. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent
Disability Retired List with a 50 percent disability rating (increased from
20 percent) effective date of discharge.

3. Please ensure all necessary actions are taken to implement these
decisions, including the recoupment of disability severance pay, if
warranted, and notification to the subject members once those actions are
completed.



XXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)



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