RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02341
BRANCH OF SERVICE:  Army	BOARD DATE:  20150114
SEPARATION DATE:  20050926

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for chronic pain of the left leg.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty although he was cleared for alternate physical fitness testing.  He was issued a permanent L3/S1 profile and referred for a Medical Evaluation Board (MEB).  The left leg pain condition, characterized as “gunshot wound (GSW) to left lower leg with chronic pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded posttraumatic stress disorder (PTSD).  The Informal PEB adjudicated “chronic pain left leg” as unfitting, rated 10%, with cited application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining condition PTSD was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The injury suffered during the ambush in OIF was head trauma from IED explosion, shrapnel taken to left side as well gun shot wound to left lower leg.  I was informed the shrapnel would eventually work itself out.  The shrapnel in my back upper area casues severe pain when rubbed against or if I mistakenly bum against a solid surface.  I would like for the foreign object to be removed.  Regarding the area of the gunshot wound, it is extremely tender and aches after workouts on extra curricular activities I would more than be willing to be re-evaluated.”  [sic]

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. 

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.
RATING COMPARISON:

Service IPEB – Dated 20050810	VA* - (11 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Leg Pain	5099-5003	10%	Partial Left Superficial Peroneal Nerve Damage w/Numbness and Pain from Knee to Foot due to GSW/Shrapnel Injury	8522	20%	20061018	
			GSW and Shrapnel, Scars, Left Leg	7805	0%	20061018	
PTSD	Not Unfitting	PTSD	9411	30%	20061010	
Other x 0 (Not in Scope)	Other x 5	
Combined:  10%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20070126 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Chronic Left Leg Pain Condition.  The narrative summary (NARSUM) noted the CI reported left lateral lower leg pain associated with a GSW received in April 2004 while deployed to Iraq.  He was treated at the local health facility and then returned to duty to his unit approximately a week later, but was evacuated 2 months later due to continued symptoms.  Left leg radiographs dated 27 May 2004 demonstrated no evidence of a tibia or fibula focal bone lesion, but noted multiple metallic foreign bodies scattered throughout the soft tissues from the proximal to the distal thirds of the tibia.  On 8 June 2004, the CI underwent excisional surgery without complication that removed the shrapnel in whole.  He participated in physical therapy to restore strength in the left leg, took medication for pain, and had demonstrated improvement.  His wound healed without complications; however, he continued to report pain in the lateral aspect of his calf from the injury.  His pain was noticeable during physical activity, particularly running, and was present at times upon awakening.  In December 2004, the CI was evaluated in the pain management clinic and the clinician made additional medication recommendations.  Pain was the only reported symptom documented.  Treatment records were silent going forward until the NARSUM.  The NARSUM dated 19 May 2005 noted the CI had continued with a combination of narcotic and non-steroidal anti-inflammatory medications to address his pain.  Physical examination of the left lower leg demonstrated tenderness to palpation along the anterior lateral aspect with scars at the left leg and knee region.  No other findings were documented.  The VA Compensation and Pension examination, 13 months after separation noted absence of muscle symptoms, normal gait, and normal left lower extremities examination.  There was no evidence of motor or sensory loss.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition analogously using the 5003 code (degenerative arthritis) at 10% for moderate and frequent pain.  The VA rated the condition at 0% and coded it 7805 (scar).  A higher rating under the 5003 code requires documented radiographic evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbation that was not supported by the record at hand.  The Board noted there were no entries in the treatment records documenting muscle weakness, atrophy, radiation of pain, numbness, motor or sensory loss, disturbance of gait, or limitation of motion.  Therefore, the Board concluded there was no evidence in the treatment record that would support rating code option 5260, 5261, 5262, or 8522 (nerve damage).  All Board members agreed there was evidence of painful motion to support the 10% rating under the 5003 code.  Thereupon, 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 left leg pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the PTSD 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.

The Board first reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the Disability Evaluation System.  The only documented diagnosis was PTSD, and therefore, the Board determined that no MH diagnosis was changed in the disability evaluation process.  This CI therefore did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project. The Board next considered whether the MH condition was unfitting for continued military service, regardless of specific diagnosis.  The psychiatric addendum noted the CI presented to behavioral health in August 2004 following a friend’s death in combat; he reported feelings about his loss and his “own PTSD symptoms.”  The CI reported he had frequent dreams about being shot in Iraq, avoided thinking about Iraq and felt jumpy and was easily startled.  No other symptoms were recorded.  His mental status examination was normal.  There was no indication from the treatment records that the CI participated in any form of MH treatment after the August 2004 visit, and no indication he took psychotropic medication.  The examiner recorded the diagnosis of PTSD and noted there was minimal impairment for military duty as related to PTSD symptoms and mild for social and industrial adaptability.  A Global Assessment of Functioning score of 75 (if symptoms are present they are transient and expectable reactions to psychosocial stressor) was recorded.  The examiner noted his condition of PTSD was not unfitting, and his prognosis was favorable.  The PTSD 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 any MH condition significantly interfered with satisfactory duty performance.  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 PTSD 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating left leg condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic pain of the left leg condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD condition, 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131110, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150008488 (PD201302341)

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