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AF | PDBR | CY2013 | PD2013 02100
Original file (PD2013 02100.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1302100
BRANCH OF SERVICE: Army  BOARD DATE: 20140618
SEPARATION DATE: 20060716


SUMMARY OF CASE: The evidence of record indicates this covered individual (CI) was an active duty PFC/E-3 (13B/Cannon Crewmember) medically separated for a right hip condition. This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards. He was issued a permanent L3/E2/S1 profile and referred for a Medical Evaluation Board (MEB). The right hip condition, characterized as “right hip coxa saltans [snapping hip] status post tibial band lengthening procedure” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, along with three other conditions listed as meeting retention standards (mild degenerative disk disease at L5-S1, mild osteoarthritis…left elbow and bilateral acromioclavicular joints and depressive disorder) for PEB adjudication. The PEB adjudicated “chronic right hip pain…” as unfitting, rated 0%, citing criteria of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI did not concur with the PEB, demanded a formal hearing with counsel and submitted an appeal. An Informal PEB adjudicated an administrative correction to the original PEB proceedings; it changed the hip rating to 10% and indicated the disability did result from a combat injury. The CI withdrew his demand for a formal hearing, made no further appeals and was medically separated.


CI CONTENTION: “I still have problems and pain with the injured hip. Also the constant limping has injured my back and other hip. Many PTSD (Posttraumatic Stress Disorder) problems.”


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 applicant. The ratings for conditions meeting the above criteria are addressed below. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference. The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service PEB – Dated 20060418
 VA - (11 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Right Hip Pain… 5099-5024 10% Right Hip Coxa Saltans… 5253 20% 20070601
Mild DDD at L4-L5…. Not Unfitting Lumbar Spine DDD 5242 20%
Depressive Disorder MDD Recurrent 9434 30%
No Additional MEB/PEB Entries in Scope
 Other x 6
Combined: 10%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 20 0 70914 .


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him, but must emphasize that the Disability Evaluation System has neither the role nor authority to compensate for later severity or complications of conditions that resulted in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), which operates under a different set of laws. The Board considers VA evidence proximate to separation in arriving at its recommendations; 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 it reasonably reflects unfitting disability at the time of separation.

Right Hip Condition. The CI injured his right hip after falling off a truck while on active duty in Iraq in July 2004. Hip “popping” was noted and a series of three steroid injections were given two weeks apart without relief while in theater. Nevertheless he completed his tour, “even though he was injured for months, he continued to put the mission first.” Upon return to the United States, he was seen for orthopedic evaluation and underwent a right iliotibial band release on 18 April 2005. He developed a postoperative seroma (collection of fluid) that drained spontaneously. The snapping improved, but pain persisted in spite of physical therapy and non-steroidal anti-inflammatory medication. A radiographic study of the pelvis and right hip dated 14 November 2005 was normal and a Magnetic Resonance Imaging (MRI) dated 21 November 2005 revealed a right trochanteric fluid collection likely postoperative seroma. As a result he was unable to perform his duties as a cannon crew member field artillery. At the MEB examination on 7 November 2005, the CI reported a swollen or painful right hip joint and numbness on right hip since surgery and the MEB physical examination indicated decreased range-of-motion (ROM) of the right hip with tenderness to palpation over the operative site with a well healed scar. The MEB narrative summary (NARSUM) dated 1 February 2006 (almost 6 months pre-separation; 9 months after surgery) noted that the CI reported constant throbbing pain in his right posterolateral hip joint, with occasional stabbing pains at a pain level of 9/10 that worsened with biking for more than half hour or walking more than half mile. The CI could not run. Pain improved with Tylenol, rest and hot soaks ; w hereas a non-steroidal anti-inflammatory drug medication did not help. No further surgery was recommen d ed. The CI was unable to lif t 95 pound cannon rounds although maximum lift testing by occupational therapy was to 55 pounds. He was unable to spread trail support steel beams, load ammunition, climb into trucks, run , jump, or wear an armored vest or a full combat load . The m ost recent MRI prior to orthopedic assessment indicated no pathology, no inflammation or edema and was e ssentially a normal MRI.

At the VA Compensation and Pension (C&P) examination performed 11 months after separation, the CI reported moderate limitations for traveling from the right hip; moderately to severely affecting him for chores and shopping; mildly affected for driving and recreation activities and moderately affecting him for exercise activities, which prevented him from doing sports activities. A right thigh ultrasound suggested a small area of non-specific fluid. Follow-up computed tomography scan right hip region showed some mild reticulation and soft tissue density adjacent to the greater trochanter. Examination revealed swelling of the right hip with pain on palpation over the right hip region along with an apparent pustular formation about the operative scar. A second examination on the same day had different findings in regard to the right hip ROM measurements and scar description as summarized below.

The goniometric ROM evaluations in evidence 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)
 PT ~ 8 Mo. Pre-Sep
(20051114)
NARSUM ~6 Mo. Pre-Sep
(20060201)
VA C&P ~11 Mo. Post-Sep
(20070601)
Joints and Spine Exam General
Flexion (125 Normal)
 64,63,63* 90 (or 100?) 45 without pain 110 with pain
Extension (20)
 0,0,0* 5 3 without pain 28-20
External Rotation (45)
 18,17,18* 30- 30 without pain 40
Abduction (0-45)
 22,23,23* - 15 pain at 15 * 45-40
Adduction (45)
 12,12,12* - 18 without pain 30
Internal Rotation
 11,12,13* 10 32 without pain 40-35
Comment : Surgery ~15 Mo. Pre-Sep
 *Limited by pain ; antalgic gait ; Poor effort 3/5 strength- R. hip flexion Antalgic gait; Poor effort 3/5 strength -right hip flexion (Same ROMs as ortho note dated 20051123) * Passive abduction 8 ⁰ to the point of pain and 15 ⁰ max ; Repetitive motion 7 ⁰ abduction. Scar-ce n trally located red papular area ; wobbly walk 8 inch scar, minimally tender ; Normal gait
§4.71a Rating
 10% 1 0% 20% 1 0%

The Board directs attention to its rating recommendation based on the above evidence. The reconsideration PEB rated the hip condition at 10% coded 5099-5024 (tenosynovitis). The VA granted an evaluation of 20% for the condition referencing an examination of the joints and spine based on abduction lost beyond 10 degrees and noted in the VARD dated 14 September 2007 that although abduction was to 15 degrees, pain onset was at 8 degrees using the measurement of passive abduction versus 15 degrees on active abduction. By applying DeLuca v. Brown, evaluation was assigned based on pain at 8 degrees since abduction was lost beyond 10 degrees. However, in another examination entitled Case Examination C&P on the same day by a different examiner, the CI’s ROMs reported were disparate and the aforementioned abduction limitation was not only not noted, but was instead normal (45 degrees) with a loss of 5 degrees on repetition. All of the other ROMs were also widely disparate. Therefore, the probative value of the VA rating is somewhat limited for the PDBR to use for a rating analysis even though the VARD gave full the benefit of doubt to the veteran in spite of its omission to address the different examination results on the same day. 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 right hip condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that depressive disorder and lower back pain 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.

Depressive Disorder. According to the MEB Consultation report dated 16 December 2005, the CI was referred for a history of depression, anxiety and insomnia and was diagnosed as having a “depressive disorder, not otherwise specified, as manifested by a several month history of irritability, dysphoria, irritation and frustration mostly secondary to what he perceived to be a runaround in the medical system, with complaints of poor sleep, decreased enjoyment, low self-esteem secondary to substantial weight gain and fatigue.” Because of the fall resulting in the right hip injury when he was deployed in Iraq, the CI indicated that he “needed surgery, but his unit would not let him be medevac’d for surgery.” As a result, he completed his mission, returned to his home base in Washington State and soon thereafter underwent the surgery on the right hip for the coxa saltans. While deployed, he stood guard duty in Mosul in 2004 where he heard and saw mortars and knew of soldiers who got hurt or were killed. However, he reported that “on the whole [his] experience was not that bad” and he denied symptoms of combat stress. However, he had concerns of being mortared, but managed his stress by exercising every day. The CI was referred to Social Work/Case Management for evaluation on 1 November 2004 and had at least two sessions with a MH intern thereafter and was last seen in October 2005. No treatment was rendered although he still had symptoms. He complained of a “crappy” mood and gained 90 pound from November 2004 through December 2005. Prior to service in the Army he weighed 350 pounds and to successfully pass the Military Entrance Processing Station examination he brought his weight down to 200 pounds. He noted panic and anxiety since Iraq and was depressed 1 to 2 weeks a month due to the weight gain as reported on the MEB examination Form 2807 dated 7 November 2005 based on his checking questions relating to nervous trouble, frequent trouble sleeping, depression or excessive worry. The commander’s performance letter did not address any condition beyond that of his right hip and leg. The MEB NARSUM indicated he received a Global Assessment of Functioning (GAF) score of 65 (some mild symptoms-generally functioning pretty well). The Informal PEB found the referred depression disorder condition to be not unfitting. The VA C&P examination dated 1 June 2007 indicated “Clearly, a review of all of this man’s records suggests that his difficulties are far more related to issues other than his experiences in Iraq, in terms of combat-like situations, etc. He had psychiatric difficulties before he entered the military, and did develop depression and anxiety as well as insomnia while he was in the military related to issues other than combat experiences.” There was insufficient evidence to justify a diagnosis of posttraumatic stress disorder (PTSD). The GAF score was approximately 55-60 (moderate symptoms) for the pertinent Axis I diagnosis of major depressive disorder, recurrent, moderate to moderately severe (secondary to multiple stressors including his failing marriage and distance from his daughter and only some of which were service related including difficulties with his leg). “The depression began while he was on active duty, and had not been adequately treated since or during his military service.” As a result of the aforementioned findings, he received a 30% rating (9434) as reported by the VARD dated 14 September 2007. Additionally noted is an increase in VA 9434 rating to 70% effective on 5 May 2009 based on claim and evidence of worsening symptoms and a VA finding of “incompetent” from 18 November 2009. Depressive Disorder was the MH diagnosis throughout the disability processes and was unchanged. Therefore this case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project. PTSD was not a diagnosis proximate to the date of separation and there was not a preponderance of the evidence to change the diagnosis from depressive disorder. No MH condition was profiled or implicated in the commander’s statement and depressive disorder was considered as meeting retention standards and adjudged as not unfitting. There was no performance based evidence from the record that any MH condition significantly interfered with satisfactory duty performance while the CI was on active duty. Post-separation VA evidence indicated symptom worsening that was not indicative of the CI’s condition at the time of separation. 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 contended depressive disorder, or that any MH condition rose to the level of being unfitting and so no additional disability rating is recommended.

Lower Back Pain (LBP). The CI checked “recurrent back pain or any back problem” on DD Form 2807 dated 7 November 2007; however, the MEB NARSUM made limited mention of lower back pain other than indicating the lumbar and sacral regions mobilized well with no referred pain to the hip, examination of the lumbar spine showed full active ROM with no tenderness to palpation and straight leg raise testing was negative bilaterally. Lumbar spine X-ray from November 2005 showed mild narrowing of the L5-S1 disk space and was otherwise normal. As mentioned previously the commander only addressed the CI’s limitations related to the hip and leg.

Some duty restrictions from the unfitting hip condition may have overshadowed impairments from the back condition as overlapping, however, the lower back pain condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. There was no performance based evidence from the record that the back condition significantly interfered with satisfactory duty performance while the CI was on active duty. 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 contended lower back pain condition and so no additional disability rating is 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 surmised from the record or PEB ruling in this case that no prerogatives outside the VASRD were exercised. In the matter of the right hip condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended depressive disorder and lower back pain 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 no recharacterization of the disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131014, 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 , AR20140018963 (PD201302100)

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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