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AF | PDBR | CY2013 | PD-2013-02128

Original file (PD-2013-02128.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX CASE: PD-2013-02128
BRANCH OF SERVICE: Army BOARD DATE: 20150313

SEPARATION DATE: 20050416

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Counterintelligence Agent) medically separated for back strain, neck and chronic bilateral hip conditions. The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB). The “low back pain,” “upper back pain,” “chronic hip pain” and “cervical neck pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (dysthymic disorder and right shoulder pain) as meeting retention standards for PEB adjudication. The Informal PEB adjudicated “thoraco-lumbar paraspinous muscle strain,” “cervical spine pain,” with possible application of the US Army Physical Disability Agency (USAPDA) pain policy and “chronic bilateral hip pain” as unfitting, rated 10%, 10% and 0% respectively with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining condition s were determined to be not unfitting . The CI made no appeals and was medically separated.

CI CONTENTION: “My neck, back and other issues still prevent me from doing certain daily activities. Ruins my quality of life.”

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 :

Admin IPEB – Dated 20050207	VA* - (~6 Days Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Thoraco-lumbar Paraspinous Muscle Strain	5237	10%	Thoracolumbar Strain	5237	0%	20050422
Cervical Spine Pain	5237	10%	Cervical Strain	5237	10%	20050422
Chronic Bilateral Hip Pain	5099-5003	0%	Greater Trochanteric Bursitis, Left Hip	5252	10%	20050422
			Greater Trochanteric Bursitis, Right Hip	5252	10%	20050422
Dysthymic Disorder	Not Unfitting	Dysthymic Disorder with Adjustment Disorder and Depressed Symptoms	9433	30%	20050422
Right Shoulder Pain	Not Unfitting	Right Shoulder Disability	5201	NSC	20050422
Other x 0 (Not In Scope)	Other x 8
RATING: 20%	RATING: 50%

* Derived from VA Rating Decision (VA RD ) dated 200 50512 (most proximate to date of separation [ DOS ] ) .

ANALYSIS SUMMARY:

Thoracolumbar Spine Condition. The narrative summary (NARSUM) notes the CI had a history of chronic back pain since 2000. Notes in the service treatment record (STR) indicated that the CI had two motor vehicle accidents (MVA), one in 2000 and another in December 2003. The CI reported back pain and had chiropractic treatment following both accidents. Lumbar spine X-rays 21 performed in April 2004 was normal, as were X-rays of the sacroiliac (SI) joints on 14 May 2004. The diagnostic impression at a physical medicine (PM) consult on 12 May 2004 was chronic myofascial back and hip pain, with an SI component, and the examiner agreed with the long-term rehabilitation (rehab) program. A stringent profile was recommended for 3 months; and, if there was no improvement over that period, then a more restrictive permanent profile. The back pain did not improve following the additional treatment and at a MEB orthopedic consult on 22 July 2004, 9 months prior to separation; the CI reported “100% low back pain” with weakness, without radicular symptoms. On exam she walked and changed positions without difficulty. Back range-of-motion (ROM) was “decreased” in all directions. There was diffuse tenderness of the thoracolumbar (TL) spine and SI joints. Seated and supine straight leg raise testing was negative bilaterally. At a second MEB orthopedic consult on 8 September 2004, 7 months prior to separation, the CI reported constant back pain and stiffness, without weakness or other radicular symptoms. The exam noted a normal gait. There was tenderness to palpation (TTP) of the low back with “minor pain” with ROM, described as able to flex to the point of “fingers to the ground.” Lower extremity strength, sensation, and reflexes were normal. Bone scan performed on 20 September 2004 noted no evidence of sacroilitis or other inflammatory bone conditions.

At the MEB examination on 21 October 2004, 6 months prior to separation, the CI reported chronic back pain without radicular symptoms or neurological problems and exam noted decreased seated lumbar flexion. Physical therapy (PT) MEB ROM, repeated three times, performed on 7 September 2004, was normal flexion (normal 90 degrees) and combined ROM (normal 240 degrees), with painful motion noted.

At the VA Compensation and Pension (C&P) examination on 22 April 2005, a week after separation, the CI reported low back pain Graded 1-2/10, without radicular symptoms. She reported moderate to severe flare-ups due to activity every 3 or 4 months that lasted several days, but denied incapacitating episodes or missed work related to the back pain. The exam noted normal gait and no TTP or muscle spasm. The exam was normal with normal TL ROM, without pain, and no additional loss of ROM with repetition.

The Board directed its attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10% and the VA rated it 0%, both coded as 5237 (lumbosacral strain). The Board noted that at the three prior-to-separation exams noted above (the two orthopedic evaluations and the MEB exam), there was serial improvement in the CI’s objective physical exam. The C&P exam was completely normal, with full painless TL ROM. In this case the three service exams were 6-9 months prior to separation and the C&P exam was the most proximate to separation, occurring just a week after separation. The Board, concluded that the progressive diminution of the back symptoms over time culminating a normal back exam at the C&P exam strongly supported that the disability due to the back condition at separation was minimal. Therefore, Members agreed that the totality of the evidence at separation supports a 0% rating IAW VASRD §4.71a and there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, incapacitating episodes, or peripheral nerve impairment related to the back condition to provide for higher or additional disability rating. The Board noted that IAW DoDI 6040.44 a lower combined rating than that conferred by PEB may not be recommended, however, within that constraint, the Board is not precluded from recommending a lower rating for an individual condition under its review. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for the back condition.

Cervical Spine Condition. The NARSUM notes the CI had a history of chronic neck pain following the two MVAs, as noted above. Cervical spine X-rays performed on 19 February 2004 were normal. The diagnostic impression at a PM consult on 12 May 2004 was chronic myofascial neck pain, with the recommendations of long-term rehab, profile for 3 months, with a permanent more restrictive profile if no improvement, as noted above in the back condition section. The CI’s neck pain continued despite the additional treatment.

At the MEB orthopedic consult 22 July 2004, 9 months prior to separation, the CI reported neck pain without upper extremity (UE) symptoms. On exam there was diffuse TTP of the C-spine. Cervical ROM was decreased throughout, with normal UE strength, sensation, and reflexes.

At the second MEB orthopedic consult on 8 September 2004, 7 months prior to separation, the CI reported her neck pain and ROM had improved with PT, but a constant neck ache remained. On exam there was TTP of the neck with negative testing for nerve compression (Spurling’s), with normal ROM and normal bilateral UE examination.

At the MEB examination on 21 October 2004, 6 months prior to separation, the CI reported chronic neck pain without radicular symptoms. The MEB physical exam noted TTP and tightness of the cervical muscles. On 7 September 2004, PT MEB ROM, repeated three times, was normal flexion (normal 45 degrees) and combined ROM of 315 degrees (normal 340 degrees), with painful motion noted.

At the VA C&P examination, 22 April 2005, a week after separation, the CI reported constant neck pain, graded 3/10, without radicular symptoms or flare-ups. On exam there was TTP of the neck with normal UE reflexes. Cervical ROM was normal, with discomfort at end ROM, and there was no additional loss of ROM with repetition.

The Board directed its attention to its rating recommendation based on the above evidence. The PEB and VA both rated the neck condition 10%, coded 5237 (cervical strain). Members agreed that the evidence supports a 10% rating IAW §4.71a and there was no evidence of muscle spasm or guarding severe enough to result in an abnormal spinal contour, incapacitating episodes, or peripheral nerve impairment related to the neck condition to provide for higher or additional disability rating. 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 cervical spine condition.

Chronic Bilateral Hip Condition. The NARSUM notes the CI had a history of hip pain (trochanteric bursitis), with normal bilateral hip X-rays. Notes in the STR indicated that in April 2000 the CI reported 5 weeks of right hip pain. She was referred to PT and eventually had an injection of the right hip for bursitis. The CI had three additional right hip injections for bursitis and a note 26 June 2001 indicated she was pain free, but she was seen for recurrent right hip pain in October 2001. A bone scan on 9 November 2001 noted mild stress changes of both hips and the anterior pelvis (pubic rami), with no evidence of trochanteric bursitis or stress changes of the femurs. At a PM consult on 23 January 2002 the CI reported right hip pain and exam noted a normal gait with TTP of the greater trochanter, greater on the right, and mild TTP of the anterior pelvis, with an otherwise normal exam. An orthopedic consult on 26 February 2002 provided the opinion that the bone scan was normal and the exam, which addressed the right hip only, noted full ROM with TTP of the greater trochanter. The examiner indicated that there was no contraindication to the CI returning to activities as tolerated. Notes in the STR indicated the CI was scheduled for a MOS Medical Review Board (MMRB) relative to the hip condition on 17 September 2002 and magnetic resonance imaging of the hips and pelvis on 13 September 2002 was normal. At a primary care visit on 22 November 2002, the CI reported persistent hip pain and the examiner noted that the CI was found fit for duty by the MMRB in September 2002 and referred the CI for additional PT. There were no further treatment notes for the hip condition in record. At a PM consult on 12 May 2004 for disposition regarding the neck and back conditions, the examiner’s impression was chronic myofascial back and hip pain with a sacroiliac component and bilateral greater trochanter bursitis. Bilateral hip injections for bursitis were recommended. Hip and pelvis X-rays on 8 September 2004 and bone scan on 20 September 2004 were unchanged from the previous studies.

A MEB orthopedic consult on 22 July 2004, which primarily addressed the neck and back conditions, noted that the CI had a P3 profile related to the hip condition. The examination noted the CI could walk and change positions without difficulty, but did not specifically address the hip condition.

At the second MEB orthopedic consult on 8 September 2004, 7 months prior to separation, the CI reported bilateral hip pain since March 2000, with no acute injury. She reported the pain was located on the outer hips and aggravated by weight bearing activities, and was well controlled if she avoided exacerbating activities. The examiner noted the CI was on a permanent profile since 2002 due to the condition. The examination of the bilateral hips noted full painless flexion and extension, and minor pain with internal rotation. The 2002 permanent profile dated 10 April 2002 referenced by the MEB orthopedic examiner was for chronic right hip pain only.

At the MEB examination on 21 October 2004, the CI reported chronic hip pain. The MEB physical exam did not address the hips.

At the VA C&P examination on 22 April 2005, the CI reported bilateral hip pain that was significantly decreased by antidepressant medication for chronic pain (amitriptyline), to the point that it was “just annoying.” She could walk and sleep without problem, and had no flare-ups as long as she avoided running. On exam there was a normal gait with TTP of the greater trochanter bilaterally. Hip ROM was normal bilaterally, with pain at end ROM of adduction and internal rotation.

The Board directed its attention to its rating recommendation based on the above evidence. The PEB combined the right and left hip conditions as a single unfitting condition and rated as 5099-5003 (analogous to arthritis) at 0%, and noted “rated as degenerative arthritis without loss of joint motion.” The VA rated both the left hip 10% and the right hip 10%, coded as 5252 (limited thigh flexion). The Board noted that in this case the PEB did not rely on the USAPDA pain policy to combine the two joint conditions, but instead provided the single rating based on 5003 rating criteria for two or more major joints, which is compliant with the VASRD. Hence, the Board surmised from the adjudication that the PEB found both the right and left hips unfitting for continued military service. The Board, therefore, deliberated the rating of the hips as each separately unfitting and eligible for individual disability ratings. The Board considered if a higher rating was achieved for the hips, individually or combined, with any coding approach. The Board first addressed rating the right and left hips according to 5003 criteria for two or more major joints and agreed that the evidence supported a 10% rating for bilateral hip bursitis coded as 5019 (bursitis) according to 5003 criteria, and there was no evidence of occasional incapacitating episodes to meet the higher 20% rating. The Board next reviewed to see if a higher combined rating was achieved rating each hip separately for painful ROM utilizing a ROM code. The majority of the treatment for hip bursitis was targeted to the right hip and Members agreed that the evidence supports a 10% rating for the right hip condition, coded as 5253 (thigh impairment) IAW VASRD §4.59 (Painful motion) and there was no limitation of motion that met the threshold for a higher rating based on ROM alone. The Board next addressed the rating of the left hip condition. The left hip was never specifically listed on a temporary profile (11 profiles addressed the hip condition and two listed bilateral hip pain) and only the right hip was noted on the final permanent profile. The CI did not seek treatment for left hip pain at any treatment visits in record, and exams which addressed the left hip indicated that the right was worse than the left. The Board concluded that based on the evidence in record the disability related solely to the left hip condition was best described as minimal and rated 0%, coded 5253. Additionally, there was no evidence of a flail joint, ankylosis, or femur impairment of either hip to provide for higher rating. The Board noted that based upon its deliberations a 10% combined rating for the hip conditions was achieved whether rated according to 5003 criteria or individually rated with 5253 and Members chose to code as 5099-5019 for bilateral hip bursitis. 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 bilateral hip condition, coded 5099-5019.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the right shoulder and dysthymic disorder conditions were not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Right Shoulder Condition. A PM consult on 12 May 2004 11 months prior to separation, noted right worse than left shoulder impingement. Right shoulder X-rays on 14 May 2004 were normal. At the MEB orthopedic consult on 8 September 2004 the CI reported right shoulder pain which had only recently developed. She reported pain 3 to 4 times per week with repetitive motions of the right shoulder, without a specific injury. She denied instability or UE symptoms of weakness, numbness, or tingling, and there had been no dislocations or subluxations. The NARSUM noted crepitus on exam and right shoulder X-rays 8 September 2004 were normal.

Dysthymic Disorder Condition. Notes in the STR indicated the CI was seen by primary care provider in February 2003 for depression symptoms of fatigue, reduced interest, and decreased motivation, without suicidal ideation. She had been on an anti-depressant for 3 weeks and the dose was increased. At a follow-up visit on 16 April 2003 she reported feeling better and declined counseling at the time. At the MEB psychiatric consult on 13 September 2004 the CI reported a history of depression all her life. She reported she was never happy and that depression ran in the family, with multiple affected immediate and extended family members. The CI reported sleep problems, decreased enjoyment of activities, decreased energy, and chronic suicidal ideation, but denied intent. The CI reported decreased self-esteem due to the decreased physical capabilities since her recent MVA, and current use of anti-depressant medications for depression, sleep and pain. The mental status examination was normal except for a subdued affect and depressed mood. The Axis I diagnosis was dysthymic disorder with a Global Assessment of Functioning of 70. (on the cusp of mild to minimal impairment range) The examiner indicated the diagnosis existed prior to service and was a persistent condition; was not service aggravated; and, resulted in minimal impairment for military duty. The psychiatrist recommended that the CI met psychiatric retention standards.

The right shoulder and dysthymic disorder conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards. They were reviewed and considered by the Board. There was no performance based evidence from the record that these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the right shoulder and dysthymic disorder conditions and so no additional disability ratings are recommended.

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 back condition, the Board unanimously recommends a disability rating of 0%, coded 5237IAW VASRD §4.71a. In the matter of the neck condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the bilateral hip condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5019 IAW VASRD §4.71a. 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 her prior medical separation:

CONDITION	VASRD CODE	RATING
Thoracolumbar Strain Condition	5237	0%
Cervical Spine Pain Condition	5237	10%
Chronic Bilateral Hip Pain	5099-5019	10%
COMBINED	20%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131028 w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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, AR20150011173 (PD201302128)

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                       XXXXXXXXXXXXXXX
                                    Deputy Assistant Secretary of the Army
                           (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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AF | PDBR | CY2013 | PD-2013-02128

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