RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX		CASE:  PD-2013-01819
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141008
SEPARATION DATE:  20040831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Individual Material Readiness List Asset Manager) medically separated for right knee pain and depression.  The knee pain and depression could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The right knee condition, characterized as “chronic right knee pain” and “patella chondromalacia to the right knee,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVIST 1850.4E.  The MEB was silent on the depression condition.  The Informal PEB adjudicated “chronic right knee pain” as unfitting, rated at 10%, with application of the VA Schedule for Rating Disabilities (VASRD).  The CI requested a Reconsideration PEB and submitted a statement that noted the development of a psychiatric condition after the MEB convened.  The Reconsideration PEB maintained the 10% rating for the right knee and added the unfitting depression condition and rated it 10%.  The “Grade III Patella Chondromalacia to the right knee” was adjudicated as a Category II condition, one that contributes to the unfitting condition.  The Reconsideration PEB also added schizoid avoidant traits as a Category III condition (one that is not separately unfitting and does not contribute to the unfitting condition).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am now rated 60% by the VA & nothing has changed.  My depression is the same, but is now finally being recognized a disabling.”

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:

Service Recon PEB – Dated 20040709 | VA - (1 Mo. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Right Knee Pain | 5099-5003 | 10% | Right Knee Patella Chondromalacia | 5260 | 10% | 20040617
Patella Chondromalacia Right Knee | Category II | | | |
Depression | 9434 | 10% | Severe Depression with Schizoid Avoidant Traits | 9211-9434 | 0%* | 20040617
Schizoid Avoidant Traits | Category III | | | |
Other x 0 (Not in Scope) | Other x 2 | 20040617
Combined:  20% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20041018 (most proximate to date of separation [DOS])
*Rating increased to 50% by VARD dated 20120229 effective 20111015.

ANALYSIS SUMMARY:  

Right Knee Pain.  The evidence supports that the CI suffered a right knee injury in basic training (September 2002).  There are no service treatment record (STR) entries concerning the right knee injury or subsequent evaluation and treatment present for review by the Board.  The only non-DES evidence present for review is the LIMDU document prepared 15 months prior to separation.  The NARSUM prepared 8 months prior to separation noted the following:

“He reports during recruit training sustaining an injury to his right knee that he felt was a dislocation; however, the member did not seek medical care immediately following the event.  A review of his record shows limited documentation of this event. It appears he followed up approximately three weeks later with a complaint of Right Knee Pain.  The patient was diagnosed with patellofemoral pain syndrome, given limited physical therapy, and returned to duty.  The patient continued to complain of ongoing right knee pain and inability to run.  In July of 2003, the service member underwent right knee arthroscopy at which time evidence of a grade 3 chondromalacia of patella was noted.  He continues to report inability to run as well as ambulate comfortably.”

A rebuttal exam/second opinion was accomplished 4 months prior to separation that contained the following additional information:

“He reports pain in the anterior, medial and lateral joint lines with running, stair climbing and ambulation.  He has had a period of limited duty and then had a Physical Evaluation Board dictated which returned on April of 2004 with return of 10% disability.”

At the VA Compensation and Pension (C&P) exam performed a month prior to separation, contained the following documentation:

Currently he takes Vioxx daily for pain.  He has difficulty flexing and fully extending the knee especially when he walks.  He has missed work twice for this condition each time for 60 days and he missed work once in the past year for 60 days.  He currently does not use a brace because he does not find this helpful in terms of knee pain.  As a result of the right knee problem he is not able to perform prolonged walking standing running climbing stairs squatting and kneeling.  He has missed most of his work time during the past year due to the knee condition.”

The goniometric range-of-motion (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 Knee ROM (Degrees) | MEB ~7 Mo. Pre-Sep | MEB Second Opinion 4 Mo. Pre-Sep | VA C&P ~1 Mo. Pre-Sep
Flexion (140 Normal) | 130 | 135 | 130
Extension (0 Normal) | 0 | 0 | 0
Comment | Antalgic gait; Pos. patellar compression & quad inhibition tests; Pos. quad atrophy; Neg. instability | Minimal effusion; Pos. patellar compression; Pos. painful motion & crepitus; No instability; Normal strength & sensation | Antalgic gait; Pos. painful motion; No effusion; No instability; Pos Deluca criteria
§4.71a Rating | 10%* | 10%* | 10%*
* IAW VASRD §4.59

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic right knee pain condition as 5099 analogous to 5003 (degenerative arthritis) and rated it 10%.  The VA applied code 5260 (limitation of leg flexion) and also rated the knee at 10%.  There is no evidence of pain with activities in the STR; however, the MEB second opinion addendum and the C&P exam document painful motion.  No exam documented limited ROM to a compensable degree absent application of §4.59 (painful motion).  VASRD §4.71 specifies for 5003 that “satisfactory evidence of painful motion constitutes limitation of motion and specifies application of a 10% rating for each such major joint or group of minor joints affected by limitation of motion.”  All exams document that there was no knee instability.  The Board considered alternate coding schemes; however, no other rating schema would achieve a 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 chronic right knee pain condition.

Depression.  The first document related to the depression condition was an interim hospital discharge summary prepared 5 months prior to separation.  The CI was admitted for a suicide attempt 5 days earlier after he swallowed approximately 40 ephedrine tablets and made several cuts on his wrists the night prior to admission.  That document contained the following passage:

“The patient reported that he was unable to think straight and was feeling worsening depression secondary to being arrested for alleged statutory rape the night prior and was in the brig overnight.  He was released the following day, as there was no evidence to support the charge, however, he felt that he was still being charged by his command regardless of the evidence.  The patient has been seen by the Mental Health Clinic since June of 2003.  He was self-referred because he noticed he did not have any more emotions and was feeling that he was unable to connect with other people.  The patient also noted that he was having difficulties with his thoughts - that his thoughts were slowed He was feeling more confused.”

His mental status exam (MSE) revealed slowed, monotone speech and some psychomotor slowing.  His mood was “I don’t feel anything” and his affect was flat.  His thoughts were linear without delusions or suicidal ideation.  Memory, concentration, judgment and impulse control were intact and his insight was poor.  While hospitalized, the CI underwent psychological testing with the following statement:

“The patient was seen for a personality testing and was administered the MMPI; however, the test was considered invalid as his responses were considered exaggerated.”

The CI was started on anti-depressant medications and after 2 days on this medication, he began to feel less socially withdrawn and was interacting more with peers.  He felt that his emotions were coming back as he was able to smile and even tell a joke on the ward, which he had not been able to do for a long time.  He was discharged on those medications with follow-up arranged.  The psychiatric addendum prepared 4 months prior to separation contained the same information as the hospital discharge summary but rendered a diagnosis of severe major depressive disorder (MDD) with psychotic features.  The PEB psychiatric addendum contained the following statement:

“19 year old admitted after a suicide attempt noted to have a decreased affect, social withdrawal and depression.  His presentation may represent a prodromal schizophrenic state however; he lacks any overt psychotic symptoms.  He is likely suffering from a major depressive disorder and has responded to antidepressant and anti-psychotic medication with cleared thinking and improved mood.  He is no longer suicidal but will require additional mental health follow-up while awaiting results of PEB.”

His military and social/civilian impairment was moderate.  He was assigned a Global Assessment of Functioning (GAF) of 51-60, moderate symptoms or moderate difficulty in social, occupational, or school functioning in social, occupational, or school functioning; at the time of hospital discharge.  At the VA C&P exam performed a month prior to separation, the examiner made the following opening statement:

“He sat in the interview room and was basically talking on the cell phone “to my boss.”  He made comments about stating that he was at the doctor's office and wanted to know what his next assignment was.  He was dressed in civilian clothes.  It was a Saturday and he appeared to be moonlighting.”

The examiner continued to take a psychiatric history from the CI which included:

“However on the antidepressant Effexor he alleged that it made him suicidal and he apparently put some marks on his wrists.  He was so depressed and suicidal that he had to take an overdose of Ephedrine.  This indicates that he was obviously abusing stimulants but couched it in terms of treatment from the psychiatrists with the military made me suicidal and I had to use illegal drugs to overdose.  It came across as if he had to make an excuse for having the illegal drugs and blame it on someone else.  His second arrest occurred in about May or April of 2004.  Again he was accused or questioned about a drug problem except this time there were allegations of statutory rape because he was supposedly seen taking a 15 -year-old girl up to his room in the barracks.  He complained that it was a misunderstanding.  On the other hand he admitted that he was on the base with a 15 year-old girl who was just his friend.  Somehow this resulted in a psychiatric hospitalization for depression and psychosis.”

The MSE was essentially normal and the examiner stated:

“The veteran reports his mood as depressed but his affect is serious and polite in the interview but rather lively in the waiting room.  The veteran's speech suggested an accent, possibly from South Africa.  However there was blocking and halting as he talked about being numb, when on the other hand he was lively while in the waiting room talking on the cell phone with his boss.”

In conclusion, the examiner diagnosed “Malingering” and assigned a GAF of 70, some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.  He concluded his evaluation with the following:

“The conclusion is that mental illness allegations conveniently show up to explain arrests and blame everything on the military.  I would need more detailed records from Balboa Hospital as well as arrest records urine tests and any other information to get a better understanding of this case but it looks like drug abuse and then malingering to cover for the drug abuse.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the depression condition as unfitting and rated it 10% under code 9434 (MDD).  The PEB adjudicated the schizoid avoidant traits as Category III.  The VA considered both conditions together, applying the combination code of 9211-9434 (schizoaffective disorder – MDD) and rated it 0% citing “…according to the VA psychiatric examination dated 6/19/04 which shows no evidence of an acquired chronic psychiatric condition.  The examiner after conducting your mental evaluation diagnosed on Axis I malingering and Axis II no diagnosis.”  
The Board reviewed all evidence related to the mental health (MH) condition with particular probative value being placed on the pre-separation evidence which amounted to the hospital discharge summary/psychiatric NARSUM and two follow-up visits at the psychology clinic.  All documentation supports that the CI’s suicidal ideation had resolved by the time he was released for the hospital.  Also supported was that he had a depressed mood with a flat affect but his mental status exam was otherwise normal and that he did not want to socialize with other military members.  He was being treated with anti-depressant medications.  The psychological testing was determined to be “invalid” due to exaggeration and the C&P exam did not diagnose any MH condition.  The Board does not infer from this observation that the severity of symptoms reported to examiners should be discounted, and it is speculative that indications of over-reporting on psychological testing translates to the same tendency regarding reported history to all examiners.  This factor does nevertheless detract from the reasonable doubt that might otherwise be conceded and is relevant to close decisions where the reported symptoms could reasonably support either of two §4.130 rating descriptions.  Board deliberation settled on a 30% vs. 10% rating using the General Rating Formula for Mental Disorders which are copied below for the reader’s convenience:

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) ........................................................ 30

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication ................................................. 10

The evidence documented that the CI had a depressed mood as the only symptom related to the 30% rating.  The CI’s flat affect could be related to actual mental illness, a non-ratable personality trait or cultural as he spent his first 10 years of life in South Africa.  A C&P exam over 7 years remote from separation actually quoted the 10% rating criteria as best summarizing the CI’s MH disability.  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 depression condition.

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 chronic right knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the depression condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  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 20130927, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW 
              BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
          (b) CORB ltr dtd 29 May 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC

			  XXXXXXXXXXXXXXX
	     		  Assistant General Counsel
			  (Manpower & Reserve Affairs)

PD-2013-01819