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AF | PDBR | CY2013 | PD2013 00662
Original file (PD2013 00662.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX        CASE: PD1300662
BRANCH OF SERVICE: Army         BOARD DATE: 20140321
SEPARATION DATE: 20020925


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (92Y/Supply Sergeant) medically separated for ankle, hip, right sciatic nerve injury and back conditions. The CI injured her ankle, hip and back in an airborne operation in March 2000 and identified a history of low back pain (LBP) for approximately a year prior to the airborne incident. These conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent U4/L4 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded “right hip osteoarthrosis, post-traumatic; right sciatic nerve injury; lumbar disk herniation; right ankle pain” and “major depressive disorder [MDD]” to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB (IPEB) combined the hip and ankle and adjudicated “right acetabular fracture with open reduction and internal fixation with right hip osteoarthrosis” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD). The IPEB adjudicated the right sciatic nerve injury, lumbar disk herniation and MDD as not unfitting. The CI appealed to the Formal PEB (FPEB) which added the combined right sciatic nerve injury and lumbar disk herniation into chronic back pain with L4/L5 and L5/S1 degenerative disk disease and herniation, as an additional unfitting condition, rated 10%. The MDD remained not unfitting. The CI appealed the FPEB decision to the US Army Physical Disability Agency (USAPDA) and requested that stress urinary incontinence, migraine headaches and depression be found unfitting. The USAPDA upheld the FPEB adjudication. The CI made no appeals and was medically separated.


CI CONTENTION: The CI writes: “I was injured in the line of duty. I had over 10 years in service and planned to retire from the military. After I was injured I worked really hard with physical therapy with the hopes of being able to continue my military service. My doctor informed me and my husband that because of my age I will recover but not enough to continue as active duty soldier even with a profile it would difficult as a Noncommissioned Officer. Because I will need additional surgery as I get older. The doctor highly recommended that I did not continue on in the military. My husband and I was [sic] told that the VA would take care of me. The doctor was taking into consideration my bodies [sic] ability to perform physical duty and because of the injury my mental ability was affected. So, I took the advice of the doctor. I did not know at the time, I'm still not 100% positive, about all the conditions I was/am dealing with many I have found are linked to Desert Storm Desert Shield. I don't remember everything that happen the day of my injury, but I think I remember it being very windy and seeing a lot of injured soldiers at the hospital. I have complained about not being able to remember things and was told after a traumatic experience people may forget things but it will come back over time. I feel as time goes on I'm not getting better. Other condition like feeling exhausted all the time, lack of sleep, pain in my leg and back, headaches, chest pain which is currently related to GERD (gastro-esophageal reflux disease), I often experience a yeast infection, as well as constipation. I can provide additional statement from family members if needed”.
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 ankle, hip and back conditions, to include the sciatic nerve injury, along with the MDD and headache condition are addressed below. The exhaustion and lack of sleep are subsumed under the MDD review. The chest pain (GERD), yeast infections and constipation are not 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 FPEB – Dated 20020403
 VA - (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
R Acetabular Fx W/Open Reduction And Internal Fixation W/R Hip Osteoarthrosis 5010-5003 10% Post-Operative Residuals of Fx, R Acetabulum, W/R Hip Osteoarthrosis 5010 10% 20020809
R Ankle Injury NSC 20020809
Chronic Back Pain W/L4/L5 And L5/S1 DDD And Herniation 5299-5295 10% DDD, Lumbosacral Spine 5295 0% 20020809
MDD, Recurrent, Moderate In Early Partial Remission Not Unfitting MDD W/PTSD* 9434 10% 20020816
Headaches Not Unfitting as per the USAPDA Migraine Headaches** 8100 10% 20020809
No Additional MEB/PEB Entries
 Other x 3 20020809
Combined: 20%
 Combined: 30%***
Derived from VA Rating Decision (VA RD ) dated 200 21001 ( most proximate to date of separation [ DOS ] ). *Increased to 30% effective 20060720. **Increased to 30% effective 20120206. **Increased to 50% effective 20060720 and 70% effective 20120206 .


ANALYSIS SUMMARY: 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 (DES) 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 (DVA) operating under a different set of laws. The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to 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 Board likewise acknowledges the CI’s contention for rating of her MDD which was determined to be not unfitting by the PEB and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career. While the headache condition was not addressed by either the MEB or PEB, it was reviewed by the USAPDA and determined to be not unfitting. Hence, it is also reviewed. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD, and based on the degree of disability evidenced at separation, will be recommended.

The PEB combined the right hip and ankle as well as the back and right sciatic nerve injury into two, bundled unfitting conditions coded 5010-5003 and analogously to 5295, respectively, each bundled condition rated at 10%. Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board must follow suit (IAW DoDI 6040.44) 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 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. To that end, the evidence for the right hip, ankle, back, and right sciatic nerve injury conditions are presented separately, with attendant recommendations regarding separate unfitness and separate rating if indicated.

Right Acetabular Fracture. On 9 March 2000, the CI sustained a right acetabular (hip) fracture after a parachute landing fall. Traction was unsuccessful in treating the condition and she underwent surgical repair four days later. Despite extensive rehabilitation in physical therapy (PT), she was unable to return to full duty and referred for MEB by orthopedics on 23 February 2001. The narrative summary (NARSUM) was dated 12 April 2001, over 15 months prior to separation. The CI reported difficulty with both duty and the activities of daily living. On examination, she was tender over the right hip and had decreased motion in all planes. Her pain was reproduced by motion. X-rays showed post-operative changes and early degenerative changes. On 5 September 2001, she was noted to have normal active range-of-motion (ROM) in both hips at a PT appointment. Her strength was reduced at 4+/5 for the right hip, but this was improved from previous visits. At the MEB examination on 10 September 2001, 12 months prior to separation, the CI reported continued post-operative pain. The hip was not separately examined. The commander noted on the 24 January 2002 statement that the CI was an outstanding NCO, but could not meet her duties since the accident. The VA Compensation and Pension (C&P) examination was accomplished on 9 August 2002, 6 weeks prior to separation. The CI reported difficulty climbing stairs and inclines. She was observed to walk without a limp and had no complaint of an alteration in either posture or gait. Both were normal on examination. X-rays were remarkable only for post-operative changes. The ROM was limited as charted below. The hip was normal in outline and symmetric in form and function compared to the left. The scar was well healed and there was no tenderness about the joint. No incapacitation was documented. 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.

Right Hip (Thigh) ROM
(Degrees)
 MEB ~18 Mo. Pre-Sep VA C&P ~ 2 Mo. Pre-Sep
Flexion (125 Normal)
 80 90
Extension (20)
 5 30
External Rotation (45)
 20 10
Abduction (0-45)
 45
Adduction (45)
 20
Comment
§4.71a Rating
 10% 10%

The Board first considered if the right hip was a separately unfitting condition. The CI was entered into the DES due to her hip pain (in addition to the right sciatica and back pain). She was issued a permanent L4 profile for the right hip surgery and back pain. After due deliberation in consideration of the evidence, the Board concluded that there was sufficient evidence to conclude that the hip was a separately unfitting condition.


The Board directs attention to its rating recommendation based on the above evidence. The Board considered the rating options for the hip as well as under those for arthritis. None offered a rating higher than the 10% determined by the VA. The Board concluded that this disability warranted a rating of 10% for the right hip condition and would best be coded as 5010.

Right Ankle Pain. The first record in evidence was a 2 April 2001 orthopedic evaluation in which the CI stated that she had injured her right ankle in airborne (parachute) operations. The NARSUM, over 15 months prior to separation, recorded that the CI dated her ankle pain to the accident. She reported pain over the front and outside of the ankle which was aggravated by weight bearing and relieved by rest. She was tender to palpation, but had normal ROM which was symmetric to the left ankle and no instability. At the MEB examination 5 months later, there was no instability, laxity or tenderness present. The ankle was not specifically addressed by the commander nor was it profiled. At the VA C&P examination, the CI reported aching when it rained. She denied any particular traumatic event or interference with either her posture or gait. Both were normal on examination. The right ankle was normal to inspection. Neither atrophy nor sensory loss was present. Motor function was normal. The ROM was normal and repetition did not cause limitation. The examiner determined that there was no pathology present. An X-ray on 12 August 2002 performed by the VA was normal. The Board first considered if the right ankle was a separately unfitting condition. The Board noted that it was not separately profiled or addressed by the commander; it was determined to be medically unacceptable by the MEB though. Examination of the ankle by the VA C&P clinician was entirely normal. The Board determined that the evidence does not support a determination that the right ankle was separately unfitting. The Board concluded that this condition could not be recommended for additional disability rating.

Right Sciatic Nerve Injury. The CI was also found to have injured the right sciatic nerve at the time of the accident. She complained of right lateral leg paresthesias (an abnormal sensation) and weakness. Electrodiagnostic testing on 26 June 2000 noted that she was still partial weight bearing on crutches. On examination she had reduced strength for right hip flexion, knee extension and ankle dorsiflexion (foot up.) There was evidence for a right sciatic neuropathy, primarily in the peroneal division, but no evidence for a radiculopathy. There were signs of both injury and healing. The NARSUM note diminished sensation over the right foot as well as weakness consistent with the electrodiagnostic findings. The commander did cite the neuropathy as part of the duty impairing conditions, but it was not profiled. The electrodiagnostic testing was repeated on 7 May 2001 and improvement was noted, although there was evidence for chronic right sciatic neuropathy. A MEB neurology examination, accomplished for the headache condition, showed normal sensation, motor function and reflexes. Gait was normal. Some give-way weakness from pain was noted for the right hip. At the VA C&P examination, the CI reported that the pain still went down the back of the thigh to the back of the leg and right foot, but that it was now intermittent and did not interfere with her function. The neurological examination was normal. The examiner determined that there was no longer pathology present from which to render a diagnosis. The Board first considered if the right sciatic neuropathy was a separately unfitting condition. The Board noted that it was not separately profiled, but was determined to be medically unacceptable by the MEB. The neurological examination by both the MEB neurologist and the VA C&P clinician was normal. The Board determined that the evidence does not support a determination that the right sciatic neuropathy was separately unfitting. The Board concluded therefore that this condition could not be recommended for additional disability rating.

Lumbar Disk Herniation. The CI first presented with LBP on 11 August 1999. She reported that she was in a car accident a month earlier, but had not sought care. At a follow-up appointment 2 weeks later, she reported that LBP had been present since the birth of her third child in October 1998. She was managed conservatively and apparently did well as she was able to continue on jump status. As above, electrodiagnostic testing revealed evidence for a right sciatic neuropathy, primarily in the peroneal division, but no evidence for a radiculopathy. The NARSUM noted that the CI had LBP for over a year prior to the accident, but that it had worsened since the accident. She was tender over the lumbar spine and had limited motion as documented below. As already noted, there were sensory and motor deficits. A magnetic resonance imaging (MRI) of the lumbar spine showed disk degeneration and herniation at L4-5 and L5-S1 levels. An 11 May 2001 clinic note stated that she had lumbar disc herniation at L5-S1. Two weeks later, another note documented a compression fracture of the lumbar spine. Neither radiological note is in evidence. At the MEB examination, the straight leg raise was positive on the right, consistent with radicular nerve irritation. She was tender over the lumbosacral area. However, motor and reflex examinations were normal. The commander specifically cited the lower back pain as impairing duty. A pain clinic examination on 4 April 2002 was significant for a history of LBP secondary to disc pathology and myofascial pain syndrome of the lower back. A MEB neurology examination, accomplished for the headache condition on 29 April 2002, showed normal sensation, motor function and reflexes. Gait was normal. Some give-way weakness from pain was noted for the right hip. She was issued an L4 profile on 9 May 2002 and back pain was listed. X-rays of the lumbar spine on 12 August 2002 showed hairline degenerative changes of the L5 vertebra, but otherwise was normal. At the VA C&P examination, the CI reported that her LBP did not interfere with ordinary lifting or carrying or compromise posture or gait. As noted above, both of the latter were normal. The neurological examination was normal. There was no spasm and the spinal curvature was maintained. The ROM was normal. She was diagnosed with spondylosis (degeneration) of the lumbar spine. Motion was not painful. 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.

Thoracolumbar ROM
(Degrees)
 MEB ~18 Mo. Pre-Sep VA C&P ~ 2 Mo. Pre-Sep
Flexion (90 Normal)
 60 90 (95)
Combined (240)
 --- 240
Comment
§4.71a Rating
 20% 0%

The Board first considered if the back pain was a separately unfitting condition. The Board noted that it was separately profiled, implicated by the commander and determined to be medically unacceptable by the MEB. The neurological examination by both the MEB neurologist and the VA C&P clinician was normal. However, an MRI was cited as showing disc herniation and an X -ray performed by the VA showed degeneration. The Board determined that the evidence does support a determination that the back pain was separ ately unfitting.

 The Board direct s attention to its rating recommendation based on the above evidence. The C&P examination was within weeks of separation. The neurological examination and ROM were both normal. There was radiographic evidence of traumatic changes. In the absence limitation of motion or painful motion, the back condition is non-compensable. However the Board does not recommend a rating lower than what was adjudicated by the PEB. 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 back pain condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s (and USAPDA) determination that the contended MDD and headache conditions were not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The MDD condition was not profiled and the CI maintained an S1 profile. It was not implicated in the commander’s statement but it was listed by the MEB. The headache condition was noted by the commander as impacting duty and listed on the profile. However, the latter remained P1 and the condition was not listed by the MEB.

Major Depressive Disorder. The first record in evidence for a mental health condition was dated 26 December 2000 when she was seen regarding stress concerning her future. She was then seen, most likely on 31 January 2001, for self-esteem exercise. She also discussed frustration over her husband’s infidelity the previous year. She was diagnosed with an adjustment disorder with depressed mood and treated with regular counseling and medications. At a family practice appointment on 19 July 2001, she reported the recurrence of nightmares. She was diagnosed with MDD by a psychiatrist on 18 October 2001 and assigned a Global Assessment of Functioning (GAF) of 70, consistent with mild symptoms or impairment. Neuropsychological testing on 6 December 2001 showed a pattern of over-reporting and inconsistency invalidating the test. She was again diagnosed with MDD and assigned a lower GAF of 60, consistent with moderate symptoms or impairment. The psychiatric NARSUM was dated 11 December 2001. The examiner determined that she was in early, partial remission of her MDD and had a GAF of 75, consistent with transient symptoms or slight impairment. The commander noted that she was an outstanding soldier. At the VA C&P examination, the CI reported continued symptoms and was diagnosed with both PTSD and MDD and assigned GAFs of 70 and 60 for each condition. No comment was made on the impact of either condition on her ability to function at her job. The Board considered if the MDD was unfitting at separation. Although she was clearly symptomatic and on treatment, the preponderance of evidence does not support that the condition significantly impaired duty performance. The Board concluded therefore that this condition could not be recommended for additional disability rating.

Migraine Headache Condition. The Board then considered the contended headache condition. The first record in evidence for this condition was an 18 April 2001 neurology consultation performed for the MEB. It noted that the CI had not been adequately treated which precluded inclusion in the MEB determination. She was seen 3 weeks later in family practice for mixed type headaches. The neurology NARSUM was dated 29 April 2002. The CI reported that she had headaches daily since her accident. The examination was essentially normal other than the give-way weakness. She was thought to have mixed headaches which were debilitating and prevented her from completing her work. At the VA C&P examination, the CI reported daily headaches. She occasionally needed to leave work, but “on the whole, she was able to stay at work despite the headaches.” The Board found no records that the CI had been placed on quarters for the headaches or that she had sought care in the emergency room. Of the three visits in the record for headaches, two were evaluations specifically for the MEB and all were accomplished after she had been entered into the DES process. There is, therefore, a “presumption of fitness” IAW DoDI 1332.38 E3.P3.5. The Board considered if the headache condition was unfitting at separation. Although she was clearly symptomatic and on treatment, the preponderance of evidence does not support that the condition significantly impaired duty performance. The Board concluded therefore that this condition could not be recommended for 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. 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 and hip conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. While the Board determined that it would be more accurate to use a different coding option and that the right ankle and sciatica were not separately unfitting, this provides no rating advantage to the CI. In the matter of the contended mental health and migraine headache conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130516, 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 XXXXXXXXXXXXXXXXXX , AR20140019392 (PD201300662)

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

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