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AF | PDBR | CY2013 | PD-2013-01835

Original file (PD-2013-01835.rtf) Auto-classification: Approved

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX CASE: PD -201 3 -0 1835
BRANCH OF SERVICE: Army BOARD DATE: 201 5 0403

Separation Date: 20040827

SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve SPC/E-4 (88M, Motor Transport Operations) medically separated for chronic back and hip pain. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) but was able to complete a modified physical fitness test. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The low back pain (LBP) and hip pain conditions, characterized as “chronic low back pain” and “bilateral hip pain , ” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were identified by the MEB. The I nformal PEB adjudicated “chronic back and hip pain” as unfitting, rated 20% with likely application of the US Army Physical Disability Agency ( USAPDA ) pain policy . The CI made no appeals and was medically separated.

CI CONTENTION : The CI elaborated no specific contention in his application.

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 Veterans Affairs Schedule for Rating Disabilities (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 :

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Service IPEB – Dated 20040420	VA - based on Service Treatment Records (STR)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Back Pain and Bilateral Hip Pain	5099-5003	20%	Back Condition	5237	Non Service Connected (NSC)	STR
Other x 0	Other x 0
Combined: 20%	Combined: 0%

Derived from VA Rating Decision (VARD) dated 20100519 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY : The PEB rated chronic back pain and bilateral hip pain under the single analogous 5003 (degenerative a rthritis ) . This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation. The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was reasonably justified as unfitting in and of it .

The Board first considered if the chronic back pain and bilateral hip pain condition, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above. The CI was on a permanent profile with multiple and significant limitations that would have resulted from the chronic back pain and bilateral hip pain condition alone. The permanent L3 profile was for chronic back pain and bilateral hip pain (degenerative disc disease) L5-S1 with osteophyte. All members a gree that the chronic back pain or bilateral hip pain condition s were reasonably justified as separately unfitting as they individually could have rendered the CI incapable of continued service within his MOS and accordingly merits separate rating s .

The Board then turned its attention to the bilateral hip pain and the possible unbundling of th e left and right hip, predicated on the DoDI 6040.44 rational described above. The Board considered if the left and right hip pain , each were reasonable justified as independently unfitting. The commander’s statement specifically noted that the left hip injury caused the CI pain. There was no mention of the right hip. The permanent profile noted bilateral hip pain. The narrative summary (NARSUM) contained the following statement concerning the right hip, “He states that his right hip hurts sometimes secondary to his altered gait to spare the left side.” All members a greed that the left hip pain condition is reasonably justified as separately unfitting and accordingly it merits a separate rating. All members agreed that the right hip pain condition is not reasonably justified as separately unfitting and accordingly it does not merit a separate rating.

Chronic Back Pain Condition : The CI developed back when he got off a truck the wrong way in June 2003. During a four mile run, 2 days later, he had an onset of LBP . He was given light duty, and given a non-steroidal anti-inflammatory drug (NSAID) which provided some but not complete relief. The CI was seen again in sick call and referred to physical therapy (PT). He underwent 6 weeks of PT without relief. The physician changed his medications to a narcotic and a muscle relaxant which reduced the pain temporarily for 1 to 2 months but the symptoms reoccurred when the medications wore off. The CI underwent four steroid injections in his lower back without significant improvement. The lumbosacral spine X -ray was normal. A lumbosacral spine magnetic resonance imaging ( MRI ) s howed moderate degenerative disc change at L5 - S1 with a small disc osteophyte complex without significant spinal canal stenosis. The MEB NARSUM exam accomplished approximately 8 months prior to separation documented that the CI reported no change in his back pain in the prior 6 months. He had pain in his low back with driving or prolonged sitting and he had been unable to run or march . The MEB NARSUM physical exam findings and motion ( range-of-motion [ROM] ) measurements performed by PT are summarized below. The VA did not have any STR’s to review and there was no VA Compensation and Pension (C&P) exam scheduled.

The Board direct ed attention to its rating recommendation based on the above evidence. The PEB coded the chronic back pain and bilateral hip pain condition as 5099 analogous to 5003 and rated at 20% with likely application of the USAPDA pain policy . The VA coded the back condition as 5237 ( Lumbosacral or cervical strain ) and rated as NSC because the CI failed to provide his STR’s for review and there was no C&P exam scheduled. The “General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease . ” The PT performed the ROM’s for the MEB examiner and measured the thoracolumbar flexion at 40 degrees . The Board agreed that the PT exam had higher probative value as the PEB requested ROMs by the PT, this was a complete exam with ROM values and was more proximate to separation. The CI met the 20% rating for “Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees . ” 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 chronic back pain condition coded 5237.

Left Hip Pain Condition : The CI had immediate pain in his left hip when he got off a truck the wrong way in June 2003. The left hip pain resolved and for a couple of days then reoccurred. The CI was seen again in sick call and referred to PT. He underwent 6 weeks of PT without relief. The CI reported pain when driving or prolonged sitting and he was unable to run or ruck as this caused hip pain. The left hip X -ray was normal. The bilateral hip MRI was normal. T he MEB NARSUM exam documented that the CI reported bilateral hip pain, and his right hip hurt sometimes secondary to his altered gait to spare the left side. The CI further reported numbness in the left leg, thigh and upper tibia and that his left hip pain as nearly constant rated at 4 / 5 out of 10. His symptoms were exacerbated by running, prolonged standing or sitting, and climbing stairs. He was awakened at night due to hip pain. The MEB NARSUM physical exam findings and ROM measurements performed by PT are summarized below. The VA did not have any STR’s to review and there was no C&P exam scheduled.

The Board direct ed attention to its rating recommendation based on the above evidence. The PEB coded the chronic back pain and bilateral hip pain condition as 5099 analogous to 5003 and rated at 20% with likely application of the USAPDA pain policy . The VA did not consider the bilateral hip condition. VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion . ” Board consensus was that the evidence present for review did not contain adequate evidence for application of VASRD §4.59 painful motion. Specifically, the PT ROM measurements did not document the presence of painful motion. Plain film X -rays and MRI images of the left hip were normal. Additionally, t here is no evidence of a left hip condition that would allow for application of any hip specific VASRD code. The Board reviewed VASRD §4.31 ( 0% evaluations) that states, “In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. ” Considering all of the evidence and mindful of VASRD §4.3 ( Reasonable doubt ) and §4. 31 , the Board recommends a disability rating of 0% coded 5099- 5003 for the left 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, likely PEB reliance on the USAPDA pain policy for rating the chronic back pain and bilateral hip pain condition 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, the Board unanimously recommends a disability rating of 20 %, coded 5237 IAW VASRD §4.71a. In the matter of the bilateral hip pain condition, the Board unanimously recommends that each joint be separately adjudicated. By a unanimous vote, the Board recommends that the right hip pain condition was not separately unfitting and cannot recommend it for additional disability rating. By a unanimous vote, the Board recommends that the Left hip condition was separately unfitting. In the matter of the right hip pain condition, the Board, by a majority vote , recommends a disability rating of 0%, coded 5099-5003 IAW VASRD §4.71a and §4.31. 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
Chronic Back Pain	5237	2 0%
Left Hip Pain	5099-5003	0%
Right Hip Pain	Not Unfitting
COMBINED	2 0%

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The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20 130923 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

invalid font number 31502

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 , AR20150011065 (PD201301835)

1. 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 to modify the individual’s disability description without modification of the combined rating or recharacterization of the individual’s separation. This decision is final.

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.

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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AF | PDBR | CY2013 | PD-2013-01835

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