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AF | PDBR | CY2013 | PD-2013-01681
Original file (PD-2013-01681.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2013-01681
BRANCH OF SERVICE: Army  BOARD DATE: 20140716
SEPARATION DATE: 20040701


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (92F10/Petroleum Supply Specialist), medically separated for chronic back pain, post-concussion syndrome and chronic pain bilateral hips, left ankle and left arm combined as a single condition. The CI could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3/S2 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded: “degenerative disc disease (DDD), lumbar,” “avascular necrosis, bilateral hips,” “left ankle and arm pain” and “post concussional syndrome” to the Physical Evaluation Board (PEB) as not meeting retention standards. No other conditions were submitted by the MEB. The PEB adjudicated “chronic back pain, due to lumbar DDD, without neurologic abnormality,” “post concussional syndrome” and “chronic pain bilateral hips, left ankle and left arm” as unfitting, rated 10%, 10% and 0% respectively. The PEB cited criteria of the VA Schedule for Rating Disabilities (VASRD) in rating the back and post-concussion conditions, while referencing the US Army Physical Disability Agency (USAPDA) pain policy with respect to rating the unfit bilateral hips, left ankle and left arm conditions as a single combined condition. The CI made no appeals and was medically separated.


CI CONTENTION: “As soon as I got out I went to the VA and was awarded 40 percent. They gave me 10% for my left ankle and left hip. The Army didn’t give me nothing. Recently I put in a claim to increase for my head percent. I am currently pending an increase for my back and head injury. I have been really struggling on my job with attendance and is currently on FMLA.”


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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for the unfitting back, post-concussion syndrome, and bilateral hip, left ankle and left arm conditions are addressed below. No additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Board for Correction of Military Records.


RATING COMPARISON :

Service IPEB – Dated 20040503
 VA - (~ at Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Back Pain 5299-5237 10% Traumatic DDD & Degenerative Arthritis, Lumbar Spine, w/ Chronic Lumbar Strain 5237-5243 10% 20040629
Post-concussion Syndrome 8045-9304 10% Cognitive Disorder 9304 10% 20040614
Chronic Pain Bilateral Hips, Left Ankle & Left Arm 5099-5003 0% Residuals, Avascular Necrosis, Right Femoral Head 5299-5252 10% 20040629
Residuals, Avascular Necrosis, Left Femoral Head 5299-5252 10% 20040629
Residuals, Left Ankle Sprain 5299-5271 10% 20040629
Scars, Forehead, Left Upper Arm, Left Thigh, Right Thigh, Right Lower Leg & Left Knee 7804 0% 20040629
No Separate VA Rating for Left Arm
No Other MEB/PEB Conditions
 Other x 5 20040629
Combined: 20%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 200 50302 ( most proximate to date of separation ).
VARD 20130925 awarded DC 9304-8045 (formerly 9304), 10% from 20040702, then increased to 40% from 20120530; also awarded DC 8100 (Migraine, associated with Traumatic Brain Injury with Cognitive Disorder), 30% from 20110117.


ANALYSIS SUMMARY: The Board acknowledges the impairment with which the CI’s service-connected conditions continue to burden him but notes the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board considers VA evidence proximate to separation in arriving at its recommendations; DoDI 6040.44 prescribes a 12-month interval for special consideration of post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The applicant had a motor vehicle accident (MVA) on 5 August 2000. He was ejected from his car and found on the median. He suffered injuries to his left arm with a humeral and acetabular fracture, left hip avulsion fracture of the femoral head, left ankle sprain and was unconscious for 15-20 hours. Computerized tomographic scan was negative for brain injuries, and found fractures of the right lateral orbit, bilateral maxillary sinuses and right zygomatic arch. He had an open reduction with internal fixation of a left mid humeral arm fracture on 5 August 2000. He continued to have left hip pain and was found to have bilateral humeral head avascular necrosis by a Magnetic Resonance Imaging study (MRI) on 4 April 2001. The CI had surgical core decompression of his left hip on 18 June 2001 with some improvement. On 3 July 2002, the CI was found fit for duty by a MOS Medical Retention Board (MMRB). In April 2003 he deployed, but in August 2003 was returned early due to his inability to perform his military duties while deployed. His persistent left hip and back pain caused by the increased activity required further evaluation.

Chronic Back Condition. The narrative summary (NARSUM) on 10 November 2003, 8 months prior to separation, notes that the CI’s major complaint was lower back pain (LBP). The pain started shortly after the MVA. The LBP was always present, exacerbated by lifting, sitting and running. He had no symptoms while walking, no numbness, no tingling, no weakness, no bowel or bladder problems. Pain improved after stretching. He took Percocet narcotic pain reliever once or twice a week for the LBP. Physical examination revealed tenderness from T10 to L4, midline and paraspinal muscles as well. There was normal motor strength, normal sensation to light touch, normal reflexes, normal heel and toe walking, no pain with extension of back. Range-of-motion (ROM) was 90 degrees of flexion (normal), with 15 degrees of extension (normal is 30 degrees). At the VA Compensation and Pension (C&P) exam performed on 29 June 2004, 2 days prior to separation, the CI reported continued mechanical back pain without radiation since the MVA in 2000. The pain was of the upper and mid portion of the lumbar spine, rated 6/10 with occasional increases to 8-9/10, had pain most of the time, worsened by lifting and increased activities, used Percocet for pain relief 1-2 tabs per day. He was able to perform his duties involving paperwork at a desk job without periods of incapacitation. His activities had slowed down, but he was unable to enjoy recreational activities. Physical examination revealed a normal gait and stance, normal fluidity and straightness, and normal lordotic curves, normal sensation to pin and light touch and normal motor exam of the lower extremities. X-rays revealed mild narrowing of the L5-S1 disk space, minor upper lumbar scoliosis convex to the right, mild anterior wedging of T12 and L1. There was pain with normal ROM testing at the end limits of 90 degrees of extension, and 30 degrees of extension.

The Board directs attention to its rating recommendation based on the above evidence. The Board considered VASRD code 5299 (rated analogously to) – 5237 (lumbosacral or cervical strain), used by the PEB for a 10% rating. The Board did not find compensable ROM limitations. There were no incapacitating episodes or muscle spasms supporting a higher rating using this diagnostic code. The Board then considered codes 5237 (lumbosacral or cervical strain) and 5243 (intervertebral disk syndrome). There was no evidence in the clinical record of neurological symptoms or compromise or periods of incapacitating episodes for a higher rating using this diagnostic code. 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 adjudication for the chronic back condition.

Post Concussional Syndrome. At the neurological MEB consultation dated 9 January 2004, the CI reported a 24-hour period of unconsciousness after the MVA and bi-temporal headaches 2 to 3 times per week, with a typical onset of 2 p.m., lasting about 30 minutes and responsive to Tylenol. The CI indicated he had diminished concentration and diminished short-term memory for which he accommodated by taking notes and relying on his wife to help diminish adverse impact of his memory loss. There did not appear to have been any substantial work related difficulty. He also reported that he was more easily irritated since the accident. Mental status examination (MSE) revealed he was alert and oriented in all spheres and fully cooperative. There were no expressive, conductive or receptive errors appreciated during the exam. Neurological examination was normal. He had a normal electroencephalographic study and normal MRI of the brain. The examiner found that the CI had enjoyed a successful trial of duty over the last 3 years since the time of the accident, thus the significance of the memory complaint was less certain. It appeared to the examiner that it may be that the deficit would be mostly manifested in terms of new learning, as opposed to learned tasks, particularly physical tasks in nature. The headaches appeared to be reasonably brief and reasonably easily controlled with over the counter medications. The neuropsychological report dated 12 April 2004, 3 months prior to separation, reported the CI had concentration and memory problems and mild headaches about twice a week. The reported findings were of significant residual cognitive deficits, more severe than would be expected based on the history, without indication of exaggeration. The examiner found it interesting that the CI was able to remain on active duty based on the degree of impairment. At the VA mental health C&P exam, performed on 14 June 2004, the CI reported difficulty with short-term memory and irritability. During the last year, he had not missed work because of his cognitive limitations, but his efficiency was reduced. He did not suffer social impairment because of his cognitive problems. He reported no panic attacks, no drug or alcohol abuse and he slept well. MSE revealed no impairment in thought process or communication, no delusions, no hallucinations, no suicidal ideations, no homicidal ideations, no flight of ideas and no looseness of associations. His behavior was appropriate during the interview, with mildly depressed mood and normal speech. There was mild difficulty with short-term memory and calculations and mildly impaired concentration and attention. He was given an Axis I diagnosis of cognitive disorder not otherwise specified, mild, and a Global Assessment of Functioning of 65 (some mild symptoms).

The Board directs attention to its rating recommendation based on the above evidence. The Board considered the VASRD diagnostic codes 8045 (brain disease due to trauma) and 9304 (dementia due to head trauma) the PEB used for its 10% rating. It noted the VA also used code 9304 (dementia due to head trauma) for a 10% rating. The Board did not find evidence in the record for a higher rating at the time of separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded there was insufficient cause to recommend a change in the PEB adjudication for the post-concussive syndrome condition.

Combined Bilateral Hip, Left Ankle, and Left Arm Conditions. The PEB combined the bilateral hips, left ankle and left arm conditions under a single rating, coded analogously to 5003 using the USAPDA guidance for rating pain. Although VASRD §4.71a permits combined ratings of two or more joints under code 5003, it allows separate ratings for separately compensable joints. IAW DoDI 6040.44 the Board may follow suit if each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended with the stipulation that the result may not be lower than the overall combined rating from the PEB. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. The Board noted the CI had performed his duties for 3 years after the MVA, and was found fit for duty by a MMRB, but was unable to finish his deployment due to left hip and then back pain.

Bilateral Hip Condition: The Board first considered if the bilateral hip condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting. On 10 June 2003, there was a theater note for left hip pain without improvement, and LBP, with full ROM. The CI was referred to sports medicine/orthopedics that documented the left hip pain began again after jumping out of trucks and recommended the CI be sent home for further tests and therapy, and possibly a MEB. The commander’s statement dated 20 July 2003, remarked physical limitations due to the hip pain made it impossible for the CI to fulfill his military duties and recommended separation. The NARSUM dated 10 November 2003, 8 months prior to separation, notes bilateral hip pain, since 2001. Medical evaluations found avascular necrosis of both femoral heads. The CI underwent a core decompression of his left hip on 18 June 2001, which improved his left hip pain, but he still had bilateral left greater than right pain, approximately 3 times a week. He took Percocet for pain. Examination of the hips revealed no discomfort with internal or external rotation while the hip was extended. ROM results are recorded in chart below. At the VA C&P exam performed on 29 June 2004, 3 days prior to separation, the CI reported occasional pain of the left hip if he had to exercise strenuously or walk for a long time, particularly with some extreme motions, and relieved by rest. The right hip sometimes hurt with weightbearing, for a short period of time. There was no locking, giving way, swelling, heat, redness or instability of the hips. Physical examination revealed right hip tenderness over the trochanteric bursa and pain upon extreme flexion. Full ROM was noted without change upon repetitive motion and is summarized in the chart below. 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.
Hip (Thigh) ROM
(Degrees)		 MEB ~ 8 Mo. Pre-Sep
(200 31110 )
FP ~ 1.5 Mo. Pre-Sep
(200 40521 )
 VA C&P ~ 3 days Pre- Sep
(200 40629 )
Left Right Left Right Left Right
Flexion (125 Normal) 105 108 FROM FROM 120 120
Extension (20) 10 20 FROM FROM 40 Not Noted
External Rotation (45) 30 40 FROM FROM 45 45
Abduction (0-45) 40 37 FROM FROM 45 45
Adduction (45) Not measured Not measured FROM FROM 30 30
Comment No pain Pain with extreme flexion
§4.71a Rating 10 % 10 % 10 %

The Board directs attention to its rating recommendation based on the above evidence. The Board examined the evidence, and found that the left hip condition was exacerbated by deployment, and the CI was returned from deployment due to no response to physical therapy and conservative management in theater. The commander’s statement mentioned the left hip condition as duty limiting. Members agreed that the functional limitations in evidence justified the conclusion that the left hip condition was separately unfit and, accordingly a separate rating is recommended. The Board considered the left hip rating coded 5099 (rated analogous to) – 5003 (degenerative arthritis) that the PEB used to arrive at a 0% rating. The Board did not find evidence of compensable ROM. There was however, evidence from theater of left hip pain with duty requirements, radiological evidence of avascular necrosis with post-operative changes, thus a minimum 10% rating is appropriate in accordance with VASRD §4.10 (functional impairment) and §4.40 (functional loss). The Board also considered code 5299-5252 (rated analogous to thigh, limitation of flexion of), used by the VA for a 10% rating, but did not find compensable ROM limitations. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left hip condition only. Members agreed that based on the evidence, the right hip pain was not separately unfitting. The well-established principle for fitness determinations is that they are performance-based. The Board could not find a preponderance of evidence in the commander’s statement or elsewhere in the service’s file (including the theater treatment notes) that documented significant interference of right hip pain, injury, or exacerbation, with the CI’s duty performance before deployment, during deployment, or at time of separation. The Board concluded therefore that this condition could not be recommended for an additional disability rating.

Left Ankle Condition: The Board first considered if the left ankle condition, having been de-coupled from the combined PEB adjudication, remained itself separately unfitting. The Board could not find a preponderance of evidence in the commander’s statement or elsewhere in the service’s file that documented any significant interference of the left ankle with the CI’s performance of duties at the time of separation, or any in-theater exacerbation, or treatment after deployment to indicate unfitness. Being mindful during the discussions that the CI was found fit for duty by an MMRB, and was performing his garrison duties for 3 years after the accident prior to deployment, and that the deployment was ended due to the left hip pain, after due deliberation, members agreed that the evidence did not support a conclusion that the functional impairment from the left ankle condition was separately unfitting and, accordingly cannot recommend a separate rating for it.

Left Arm Condition: The Board first considered if the left arm condition, having been de-coupled from the combined PEB adjudication, remained itself separately unfitting. The Board could not find a preponderance of evidence in the commander’s statement or elsewhere in the service’s file that documented any significant interference of the CI’s left arm condition with the CI’s duty performance prior to deployment The Board did not find any evidence of an in-theater injury, exacerbation, or treatment afterward to indicate unfitness. After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the left arm condition was separately unfit and, accordingly cannot recommend a separate rating for it.


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 left hip was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the post-concussional syndrome condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the left hip condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. In the matter of the right hip, left ankle and left arm conditions, the Board unanimously agrees it cannot recommend them for additional disability rating since the CI was performing his duties after the MVA without evidence of re-injury or exacerbation during deployment. 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic Back Pain Condition 5299-5237 10%
Post-Concussion Syndrome Condition 8045-9304 10%
Left Hip Condition 5099-5003 10%
Right Hip Condition Not unfitting
Left Ankle Condition Not unfitting
Left Arm Condition Not unfitting
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130925, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                          
                           XXXXXXXXXXXXXXXXXX
                           President
                           Physical Disability Board of Review


SAMR-RB                   


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXX, AR20150001211 (PD201301681)
1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.



3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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