RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201735
BRANCH OF SERVICE:  Army	BOARD DATE:  20130523
SEPARATION DATE:  20091217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (68J10/Medical Logistics Specialist) medically separated for a left knee condition.  He developed left knee pain with running, in 2004, and was diagnosed with patellofemoral syndrome (PFS).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The CI was referred for psychiatric consultation after MEB referral for the knee condition, was diagnosed with posttraumatic stress disorder (PTSD), and was issued a permanent S3 profile.  The left knee and PTSD conditions were forwarded to the Informal Physical Evaluation Board (IPEB) as medically unacceptable IAW AR 40-501.  The MEB also identified and forwarded four other conditions (see rating chart below) as medically acceptable.  The IPEB determined that the CI was fit for duty for all conditions, and he appealed to a Formal PEB (FPEB).  The FPEB adjudicated the knee condition as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PTSD and other submitted conditions were determined to be not unfitting.  The PTSD and other submitted conditions were determined to be not unfitting.  The CI made no further appeals, and was medically separated.

CI CONTENTION:  “Veteran was not given a rating for condition that was deemed unfitting by MEB doctors (PTSD).  Instead, because a commander and supervisor said the condition did not affect fitness, it was retracted at PEB board and only one condition (knee) was judged unfitting.  The MEB doctor's opinion was ignored.”

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 left knee condition is addressed below.  The requested PTSD condition, which was determined to be not unfitting by the PEB, is likewise addressed below.  The remaining conditions (charted below), which were identified as not unfitting by the PEB, were not requested for review; and thus are not within the defined scope.  Those, and any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service FPEB – Dated 20090911	VA (~7 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PFS, Left Knee	5099-5003	10%	PFS, Left Knee	5299-5260	0%	20090518	
PTSD	Not Unfitting	PTSD	9411	50%	20091014	
Sleep Apnea	Meet Retention Standards	Obstructive Sleep Apnea	6847	50%	STR*	
Hyperlipidemia	Meet Retention Standards	No VA Entry	20090518	
Lower Back Pain	Meet Retention Standards	Lumbar Spine Condition	5299-5237	NSC*	20090518	
Right Ankle Pain	Meet Retention Standards	Right Ankle Condition	5299-5271	NSC*	20090518	
No Additional MEB/PEB Entries	Others x 3 	20090519	
Combined:  10%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20100303 (most proximate to date of separation [DOS]).
* STR = Service Treatment Record    NSC = Not Service Connected

ANALYSIS SUMMARY:

Left Knee Condition.  Other than a 1996 sports injury to both knees, the first entry in the service treatment record (STR) for knee complaints is a December 2006 entry, noting a one year history of left knee pain associated with running and stair climbing (no new trauma).  Radiographs were normal, and a diagnosis of PFS was made.  There followed multiple STR entries for physical therapy, orthopedic consultation, dispensing of braces, and ongoing conservative treatment.  There is abundant documentation of normal gait, lack of effusion, joint stability, absence of meniscal signs, and grossly normal (or minimally decreased) range-of-motion (ROM).  Painful motion was specified in various outpatient notes.  Magnetic resonance imaging from March 2009 was normal.  The CI continued to experience pain with essential activities and could not pass remedial physical training.  An orthopedic consultant, in April 2009, stated that surgery was not indicated, that conservative measures had been exhausted; and recommended MEB referral.  The narrative summary (NARSUM) noted chronic insidious and worsening knee pain which limited standing greater than 15 minutes, prolonged flexion, driving, running or prolonged walking.  The physical exam noted a normal gait, no edema, no tenderness, normal strength, no signs of cartilage impingement, and no ligamental laxity to stress maneuvers in all planes.  The ROM evaluation documented flexion of 140 degrees (normal) and extension 0 degrees (normal); specifying “No limitation in [ROM] from pain, fatigue, weakness or lack of endurance with 3 repetitions.”  At the VA Compensation and Pension (C&P), 7 months prior to separation, the CI rated his pain at 5 out of 10; aggravated by exercise, walking, running, jumping, squatting, and driving.  The VA physical exam noted a normal gait, no tenderness, normal strength, no signs of cartilage impingement, and no instability.  The recorded ROM values were normal, identical to those from the MEB; and likewise specified the absence of painful motion.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) specified painful motion in support of the minimal rating.  As noted in the evidence, painful motion would have to be supported by STR entries rather than the NARSUM.  The VA’s 0% rating was compliant with VASRD §4.71a in that ROM was normal, §4.59 (Painful motion) was not applicable, and there were no other ratable findings in evidence.  There is no instability, frequent effusions, or locking which would justify separate ratings or any rating higher than 10%.  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 left knee condition.

Contended PTSD Condition.  The earliest mental health complaint in the STR was May 2006, during deployment to Iraq.  This documented depression and stress due to a domestic stressor (divorce), with a primary complaint of hypersomnolence (specifically oversleeping and work tardiness).  He was diagnosed with adjustment disorder and treated with an anti-depressant (Prozac).  Although the source documents are not in evidence, later records document a follow-up behavioral health visit, in October 2007, after redeployment.  The diagnosis remained adjustment disorder, and Prozac was discontinued.  There was no further contact with behavioral health, until May 2009, after the MEB was initiated for the knee condition and 7 months prior to separation.  The S3 profile was dated 20 April 2009 and noted a diagnosis of PTSD.  There were no psychiatric hospital admissions.  An Axis I diagnosis of PTSD was entered on the MEB psychiatric addendum to the NARSUM, in July 2009.  That evaluation documented specific combat related Criterion A stressors and typical symptoms of PTSD.  It noted that the CI was still not being treated, and recommended that he be re-started on Prozac.  The assigned Global Assessment of Functioning score was 51 – 60 (moderate impairment).  The examiner judged that the CI failed retention standards.  The initial commander’s statement of May 2009 (concurrent with the MEB referral for knee) specifically documented, “Soldier has no mental disorder.”  A follow-up commander’s statement of August 2009 documented, “This command was unaware that [CI] was being treated for PTSD, and after contemplating [CI’s] behavior and attitude in the past recent months, this command notes that [CI] can and could still perform his duties as a 68J to the minimum standard.”  All performance evaluations documented satisfactory work and appearance, and none referenced any emotional or mental health issues.  Two months prior to separation at the VA psychiatric C&P examination, although noting real time irritability and isolation at work, stated that the CI had lost no work time due to psychiatric illness and that his “relationship with his supervisor is good overall and his relationship with his co-workers is fair.”  The DA Form 199, from the IPEB finding, the CI fit for duty referenced abundant supporting evidence from the commanders’ statements and performance evaluations, noted that the CI had completed 24 hours of college credit, and concluded “Significant evidence is presented by the [Command] that the Soldier has no performance issues, performs work to standards, and has effective work relationships with co-workers and supervisors.”  The DA Form 199 from the FPEB, after hearing sworn testimony, is excerpted below.
In addition to being unfit for left knee [PFS], the Soldier also contended at the formal PEB that the diagnosis of [PTSD] is unfitting.  The PEB notes that the Soldier was initially referred to DES [Disability Evaluation System] due to left knee pain.  The additional diagnosis of PTSD was made after this referral to DES.  His Commander was initially unaware of any psychiatric diagnosis.  When asked to address any impact of the psychiatric diagnosis on duty performance, both his Company Commander (memo dated 19 August 2009) and Dental Corps Supervisor (memo dated 14 August 2009) indicate that PTSD does not interfere with the Soldier's performance of his MOS related duties.  The PEB finds that the diagnosis of PTSD is not medically unfitting.
The Board’s main charge is to assess the fairness of the PEB’s determination that the PTSD condition was 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.  An established principle for fitness determinations is that they are performance-based; and, the Board is confronted in this case with the lack of any evidence that the limitations imposed by the PTSD condition prohibited the performance of the duties required of the MOS.  It is further relevant that, even though some functional impairment can be inferred from evidence which surfaced after MEB referral for the knee condition, there is no evidence that it had any significant impact on performance throughout the CI’s military career prior to that.  The Board must consider this factor in its assessment of the PEB’s fitness determination.  The Service fitness determination was subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral).  This stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  The Board, IAW DoDI 6040.44 (E3.4.d), is bound by directives in effect which do not conflict with the VASRD; and, the VASRD is not relevant to DES fitness determinations.  After due deliberation in consideration of the preponderance of the evidence, members agreed that there was insufficient cause to recommend a change in the PEB fitness determination for the PTSD condition; and, accordingly, no disability rating is indicated.

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 knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD, the Board unanimously recommends no change from the PEB determination 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Patellofemoral Syndrome, Left Knee	5099-5003	10%	
Post-Traumatic Stress Disorder	Not Unfitting	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130015037 (PD201201735)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA