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AF | PDBR | CY2013 | PD2013 00141
Original file (PD2013 00141.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1300141
BRANCH OF SERVICE: Army  BOARD DATE: 20130716
SEPARATION DATE: 20030123


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (88M/Motor Transport Operator) medically separated for joint pain. During basic training in 2001 the CI experienced left knee pain which was successfully treated by convalescent leave, thereby allowing the CI to complete her basic training and Advanced Individual Training (AIT). Once training was completed, however, knee pain returned in 2002 and was later accompanied by bilateral hip pain during physical activity. Bone scan confirmed the presence of stress fracture; conservative treatment was ineffective and surgical options were not offered. The joint pain could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty or physical fitness standards so she was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The joint pain, characterized as “chronic left knee pain and chronic bilateral hip pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “chronic left knee and bilateral hip pain…” as unfitting and rated 0% IAW US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “Medical conditions have deteriorated and getting worse. Medical is effecting all lower extremities.”

The CI also attached an additional statement (Block 15, Remarks section of DD Form 294) to her application which was reviewed by the Board and considered in its recommendations.


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 rating for the unfitting knee and bilateral hip pain is 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.

The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her but must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for future severity or complications of conditions for which they were medically separated. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.



RATING COMPARISON:

Service PEB – Dated 20021029
 VA - (3 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Left Knee and B/L Hip Pain due to Stress Fracture in the Lateral Condyle/Lateral Epicondyle of the Distal Left Femur. Pain, Slight and Intermittent.
 5099-5003 0% Chondromalacia, Left Knee With Stress Fracture, Distal L. Femur 5014 0% 20021008
No Additional MEB/PEB Entries
 Other x 8
Combined: 0%
 Combined: 0%
Derived from VA Rating Decision (VA RD ) dated 20030325 .


ANALYSIS SUMMARY: The PEB combined the left knee pain and bilateral hip pain conditions under a single disability rating, coded analogously to 5003. Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. IAW DoDI 6040.44 the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for service rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW Veterans Affairs Schedule for Rating Disabilities (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.

Left Leg Pain. The first entry in the service treatment record (STR) is from a left leg X-ray on 15 January 2001 (2 weeks after entering active duty) to rule out a fracture that was reported as normal; a left knee X-ray was performed on 15 February 2001 that showed lytic lesions within the proximal tibial epiphysis. The CI was evaluated and treated for left knee pain and finished her training. Bone scans were initially negative in November 2001, then positive for compression fracture of the left distal femur four months later (March 2002), and then back to negative in October 2002 (3 months prior to separation), indicating healing of the hip and legs with some non-specific uptake of the left big toe. The CI had a permanent lower extremity level 3 (L3P) profile for chronic bilateral leg pain/stress reaction, with no running or jumping, no marching, no rucksack; walk, bicycle, swim at own pace; no lifting more than 30 pounds on 8 July 2002. The commander’s statement mentioned the CI was unable to perform her duties due to physical limitations. The narrative summary (NARSUM) on 11 September 2002, 4 months prior to separation noted that the CI was unable to repetitively climb into and out of the trucks that she drove. Examination revealed full ranges-of-motion (ROM) of the knees, normal reflexes, normal sensation, and normal strength and muscle tone, no edema, no effusions, negative Drawer’s, Lachman’s, and McMurray tests, slightly antalgic gait was noted. At the VA Compensation and Pension (C&P) exam on 8 January 2003 (2 weeks prior to separation), excerpted from the VARD since the actual exam report was not in the STR, the CI complained of constant pain in the left lower leg, and dull aching pain in the left knee. Physical exam found no evidence of malunion or nonunion of the tibia, no edema, ROM was normal 0-140 degrees. X-ray of the tibia/fibula and knee were normal.

The Board directs attention to its rating recommendation based on the above evidence. The PEB used VASRD diagnostic codes 5099 (rated analogous to)–5003 (arthritis, degenerative [hypertrophic or osteoarthritis]) for a 0% adjudication. The VA used code 5014 (osteomalacia) which the VASRD instructs be rated on limitation of motion of affected parts, as arthritis, degenerative (5003), for a 0% adjudication. The Board majority agreed that the persistent functional limitations in evidence were difficult to reconcile with a 0% rating and that VASRD §4.40 (functional loss) was supported to achieve the minimum rating of 10%. §4.40 states, “a part which becomes painful on use must be regarded as seriously disabled,” and there is ample evidence in the form of evaluations and profiles that such was the case with the left knee pain condition. The Board also considered code 5255 (femur, impairment of:) with slight knee or hip disability which provides a 10% rating, and was more descriptive of the actual healed stress fracture residuals of pain but provided no rating advantage to the CI. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10% for the left leg pain condition.

Bilateral Hip Pain. The first entry for the right hip was on 17 September 2002, 4 months prior to separation, with a 3-week history of pops and pain. Physical exam revealed some pop and grind with right rotation, tenderness at groin, normal gait. X-ray showed a faint 5mm by 4mm density, bone scan was negative. She was treated and diagnosed with bursitis. The first entry for left hip (and leg pain) was on 1 May 2002, 8 month prior to separation, X-rays were negative. On 16 July 2002, there was an emergency room visit for a fall onto the left hip (while pending MEB). The NARSUM on 11 September 2002, 4 months prior to separation, noted the CI complained of bilateral hip and knee pain after AIT. Physical examination revealed tenderness of the left gluteus maximus, and slight tenderness to the greater trochanteric area of the left hip. There was full ROM with pain of the left hip upon full flexion, abduction, and external rotation. The hip pain condition was not rated on the VARD. A C&P examination on 27 July 2007, 4 years after separation noted no hip complaints and was working full time as a department store stocker.

The Board first considered if the bilateral hip pain condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. Members agreed that based on the above evidence there was insufficient evidence that it was separately unfitting. The well-established principle for fitness determinations is that they are performance based. The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of the bilateral hip pain condition with the performance of duties, nor were any physical findings documented by the MEB or VA exams which would logically be associated with significant disability. The Board concluded therefore that this condition could not be recommended for an additional disability rating.


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 DoDI 1332.39 for rating the left leg pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the left leg pain condition the Board recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a by a vote of 2:1. The dissenting board member regarding the left leg pain did not elect to submit a minority opinion. In the matter of the contended bilateral hip pain condition, the Board unanimously agreed that it could not recommend it for an additional disability rating. 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:

UNFITTING CONDITION
 VASRD CODE RATING
Left Leg Pain Condition
 5099-5003 10%
Bilateral Hip Pain Condition
 Not Unfitting
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130316, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130019929 (PD201300141)
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 rating to 10% without 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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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