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AF | PDBR | CY2013 | PD-2013-02717
Original file (PD-2013-02717.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-02717     
BRANCH OF SERVICE: Army          BOARD DATE: 20150522
DATE OF PLACEMENT ONTO TDRL: 20030523
DATE OF REMOVAL FROM TDRL: 20070301


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Telecommunication Center Operator) medically separated for bilateral hip pain. His hip conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards, but he was authorized (per profile) to perform an alternate physical fitness test. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The “avascular necrosis of the bilateral femur heads, left greater than right” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB adjudicated his bilateral hip conditions as unfitting, rated 20% left and 10% right, c iting application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was placed on the Temporary Disability Retired List (TDRL). Approximately 2 years later, the IPEB continued the CI on TDRL as the hips had not yet stabilized enough for final rating purposes. The CI remained on TDRL approximately 20 months more. The IPEB then adjudicated the bilateral hip condition as unfitting and rated it at 20%, citing application of the VASRD. However, the IPEB’s rating recommendation was not approved by the US Army Physical Disability Agency (USAPDA) and the case was sent back for reconsideration. The PEB reconsidered the rating and lowered it to 10%, citing application of the VASRD. 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 :

Final PEB – 20070129
 VA Rating Decision1 - 20030909
TDRL Placement – 20030523
 Code Rating Condition Code Rating
Proximate
Condition
 TDRL
Placement		 TDRL Removal TDRL2
Placement
 TDRL3 Removal
Avascular Necrosis of Bilateral Femoral Heads… 5299-5255 30% 10% Avascular Necrosis Left Hip… 5251 10% 10%
Avascular Necrosis Right Hip… 5251 10% 10%
Scar Right Hip… 7804 10% 10%
Other MEB/PEB Conditions x 0 (Not in Scope)
 Other x 2
RATING: 30% → 10%
 RATING: 30%
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20030819 , ~ 3 mos. post-TDRL placement
3. Rating derived from C&P exam dated 20030819, ~42 mos. pre-TDRL removal


ANALYSIS SUMMARY:

Bilateral Hip Pain Condition. The CI was first seen on 15 November 2001 with a 2-day history of hip pain and was treated with duty restrictions without resolution of the pain. An X-ray of the pelvis on 4 December 2001 was normal. He was seen in orthopedics on 25 February 2002 and early avascular necrosis (AVN) was suspected. X-rays did not show an obvious fracture or stress reaction; however, a lucency suggestive of a bone infarct (dead tissue) on the left was noted on X-rays performed on 6 May 2002. An magnetic resonance image performed on 16 May 2002 showed AVN of the left femoral head (the top of the femur which connects to the hip) and early AVN of the right femoral head. He then had surgical treatment of the right hip on 29 July 2002. Following surgery, he remained symptomatic. The narrative summary was dated 14 January 2003, 4 months prior to TDRL placement. The CI reported left greater than right hip pain which limited his activities. On examination, the range-of-motion (ROM) was reduced bilaterally by pain for flexion, but extension was full. Internal and external ROM was limited, more on the left than the right. Motor strength was normal but limited by pain. He had a painful gait and used a cane. No comment was made about the scar.

At the VA Compensation and Pension (C&P) examination performed 3 months after TDRL placement, the CI reported constant pain, but no longer used a cane or crutches. He was noted to have a normal gait with reduced ROM which is charted below. Motion was painful on testing. Repetition increased his symptoms, but a further loss of motion was not quantified. The surgical scar was noted to be moderately painful to palpation. The CI was placed onto TDRL on 22 May 2003. At an interim evaluation on 17 November 2004, he was noted to have a painful gait and reduced ROM. His strength remained normal. The scar on the right hip was well healed. He was continued on TDRL status. The next TDRL evaluation was on 7 November 2006 and lead to removal from TDRL and permanent retirement. The CI reported a recent increase in pain in his hips. On examination, neither hip was tender to palpation. Motion was painful and limited as charted below. No comment was made on the gait. X-rays showed bilateral degenerative changes, left greater than right. There were no additional records proximate to TDRL removal in evidence and available for review. 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) 		Ortho ~2 Mo. Pre- TDRL Entry VA C&P ~ 3 Mo. P ost - TDRL Entry P EB ~ 5 Mo. P re - TDRL Exit
Left Right Left Right Left Right
Flexion (125 Normal) 95 100 60 95 90 90
Extension (20) - - 15 15 0 0
External Rotation (45) 30 45 20 20 60 45
Abduction (0-45) 40 45 15 15 - -
Adduction (45) - - 15 15 - -
Comment Painful motion not documented Painful motion not documented Painful motion present Painful motion present Painful motion present Painful motion present
§4.71a Rating 0 % 0 % 10 % 10 % 10 % 10 %

The Board directed its attention to its rating recommendation based on the above evidence. Although the PEB listed the unfitting condition as the bilateral hip pain, the hips were rated separately at TDRL placement and as a combined condition at TDRL removal IAW the VASRD. The PEB rated the left hip at 20% and the right at 10% at TDRL placement using the code 5299-5255 (analogous to impairment of the femur) and both at 10% (combined, not separately) at TDRL removal using the code 5099-5003 (analogous to degenerative arthritis). The VA rated each hip at 10% at TDRL placement using the code 5251 (thigh, limitation of extension) and retained the ratings and code when reevaluation in 2014. The Board considered the evidence and determined that the hips were separately unfitting at both placement and removal from TDRL and separate ratings appropriate if supported by the evidence. It then considered the right hip and left hip for ratings at placement and removal from TDRL. The Board considered the codes available for the hips and found no route to a rating higher than that assigned by the PEB at TDRL placement. 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 left or right hip condition at TDRL placement. The Board also determined evidence does not support the addition of the scar as an unfitting condition at TDRL placement.

The Board then considered the ratings at TDRL removal and noted that while 10% for both hips is supported under the code 5003, the use of the code 5251 supports at 10% rating for each as does the presence of painful motion for each hip IAW VASRD §4.59 (painful motion).


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 left and right hip conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication at TDRL placement. In the matter of the left and right hip conditions, the Board unanimously recommends a disability rating of 10% each, coded 5251 IAW VASRD §4.71a at TDRL removal. 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:

CONDITION VASRD CODE RATING
TDRL PERMANENT TDRL PERMANENT
Left Hip Avascular Necrosis 5299-5255 5251 20% 10%
Right Hip Avascular Necrosis 5299-5255 5251 10% 10%
COMBINED 30% 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131218, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record




XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review







 AR20150015855, XXXXXXXXXXXXXXXXXXXX


Dear XXXXXXXXXXXXXXXXXXXX:

         The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability. I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation. This will not result in any change to your separation document (DD Form 214, Certificate of Release or Discharge from Active Duty) or the amount of severance pay. However, it will require a new separation order. A copy of this decision will be filed with your Physical Evaluation Board records. I regret that the facts of the case did not provide you with the outcome you may have desired.

         This decision is final. Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

         A copy of this decision has also been provided to the Department of Veterans Affairs.
Sincerely,



                                                      XXXXXXXXXXXXXXXXXXXX                                                                           Deputy Assistant Secretary of the Army
                                                      (Review Boards)

Enclosure
                 

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