Author: JOHN J. D'ORAZIO
Last saved by: Weathers, Janice R SrA MIL USAF AFDW SAF/MRBD
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX		CASE:  PD1300235
BRANCH OF SERVICE:  Army		BOARD DATE:  20131213
Date of Permanent SEPARATION:  20050506	

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (54D10/Chemical Operations Specialist) medically separated for posttraumatic arthritis of the right knee and posttraumatic stress disorder (PTSD).  She sustained a right femur and tibia/fibula fracture in a motor vehicle accident (MVA) while deployed to Iraq in 2003.  Her mental health symptoms also began in relation to the MVA when she developed nightmares, depression and lack of interest.  The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The right knee arthritis and PTSD conditions, characterized as “traumatic arthritis right knee,” “post-traumatic anterior right knee pain” and “PTSD, chronic” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated “posttraumatic arthritis of the right knee” and “PTSD” as unfitting, rated 10% and 10%.  The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB findings and ratings.  Subsequent to both IPEB and FPEB, the MEB documented “left knee internal derangement” as not meeting retention standards, in addition to the aforementioned conditions.  There was no record of a PEB finding with respect to the left knee.  The CI made no further appeals and was medically separated. 

CI CONTENTION:  The CI elaborated no specific contention in his application.  

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.  In addition, the CI was notified by the Army that her case may be eligible for review of the disability evaluation of her mental health condition in accordance with Secretary of Defense directive for a comprehensive review of members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose mental health diagnoses were changed during that process.  

The rating for the unfitting PTSD and right knee conditions are addressed below along with a review of any other mental health conditions.  Conditions or a contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:  
   
Service FPEB – Dated 20050127 | VA - (2 Wks Pre -Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Post-traumatic Arthritis Rt Knee | 5010 | 10% | Residuals of Fracture, Rt femur | 5255 | 10% | 20050419
| | | Degenerative Changes, Chondromalacia Patellae, Post-Op Rt Knee | 5010-5260 | 10% | 20050419
| | | Residuals of Fracture, Rt Tibia/Fibula | 5262 | 0% | 20050419
PTSD | 9411 | 10% | PTSD | 9411 | 50%* | 20050419
No Additional MEB/PEB Entries | Other x 4 | 20050419
Combined:  20% | Combined:  70%
Derived from VA Rating Decision (VARD) dated 20050518 (most proximate to date of separation [DOS]).   
* PTSD rating was reduced to 30% effective 20080201. 

ANALYSIS SUMMARY:  The PEB adjudicated the CI’s PTSD as unfitting and provided a permanent disability rating of 10%.  The PEB rating, derived from DoDI 1332.39, preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.129.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), agrees that the stipulations of §4.129 are met in this case; and, will thus recommend a minimum 50% PTSD rating for a retroactive 6-month period of reconstructive Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD §4.130 criteria at 6 months for its permanent rating recommendation.  As with the PTSD condition, the Board will assess a permanent rating recommendation for the unfitting right knee condition based on the relevant evidence at 6 months.  
  
PTSD Condition.  The psychiatric narrative summary (NARSUM) notes the CI had a history of chronic PTSD following a severe MVA in which she suffered multiple fractures of her right leg.  At the MEB psychiatric exam, approximately 8 months before TDRL entry, the CI reported sleep difficulties, nightmares, intrusive thoughts, social withdrawal and estrangement, depressed mood, difficulty recalling the event and concentrating.  There was no MEB mental status exam (MSE) noted, but the examiner noted review of six outpatient treatment records.  In a 15 September 2004 mental health (MH) note, most proximate to the date of separation, the examiner noted “the patient’s mental status exam is very reassuring.”  A service treatment record (STR) MSE entry noted a mildly constricted affect and depressed mood but an otherwise normal exam.  Six telephonic MH consults that followed indicated that the CI was responding well to a sleep medication.  Additional medication which treated her pain and improved her mood was added to control irritability and mood swings.  The last note in the service treatment record (STR) indicated that the CI was doing well on these medications.  The AXIS I diagnosis was PTSD causing marked impairment and depressive disorder, related to her physical injuries, causing mild impairment.  The examiner noted the CI had a minor depressive syndrome and that she remained symptomatic despite treatment.  Global Assessment of Functioning (GAF) was 60 (moderate symptoms or moderate difficulty in social, occupational, or school functioning.)  At the VA Compensation and Pension (C&P) exam completed on 19 April 2005, approximately 2 weeks before separation, the CI reported nightmares, sleep disturbances, anxiety, startle responses and flashbacks of the accident.  She reported fear of driving.  There was no MSE documented.  Review of STR was noted with a diagnosis of PTSD.  At the post-separation VA C&P PTSD examination, approximately 27 months after separation, the CI reported troubling nightmares several times per week described as “weird” involving many topics such as being chased, kidnapped, mother dying, or her children getting hurt.  She reported ruminating about military experiences, sleep difficulties, anxiety due to being pregnant and paranoia.  She was off her medications due to her pregnancy.  The CI reported being unemployed since military discharge because she was recuperating from her injuries.  She had taken classes and graduated in July 2006 as a certified medical assistant with plans to enter the medical field.  She was in a good marriage and was pregnant as noted.  The CI reported chronic sleep disturbances, but enjoyed leisure activities and denied any substance abuse.  There was no history of violence, suicidal or homicidal ideas or panic attacks.  At the MSE the CI was noted to be cooperative and made good eye contact.  She was fully oriented with normal thought, speech, memory and concentration.  There was no evidence of delusions, or hallucinations.  Her mood was mildy depressed with a congruent affect.  The diagnosis was AXIS I - chronic PTSD and GAF was 60.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD at 10%, and the VA at 50%, with follow-up exam scheduled at 6 months.  The Board considered the rating at the time of placement on TDRL IAW §4.129 as discussed above and unanimously agreed that there was not a preponderance of evidence in the record to support a rating higher than 50%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two ratings), the Board recommends a TDRL entry disability rating of 50% for the PTSD condition IAW §4.130.  The Board next considered the permanent disability rating of the PTSD condition.  The additional medical evidence in the record is limited to a remote VA C&P completed on 08 August 2007, approximately 27 months after separation.  There was no relevant VA outpatient or civilian provider evidence during the 6-month interval.  This deprives the Board of evidence for judging the stress of transition to civilian life, which is a key intent of §4.129, and generally a significant element underlying the Board’s permanent rating recommendation.  In cases such as this, the Board, of necessity, must base the permanent rating recommendation on the information at separation and, to a certain extent, on the anticipated (more likely than not) prognosis at 6 months.  The evidence in the STR cited by the MEB psychiatric addendum indicated the CI was doing well on medications at separation.  The VA C&P examination 2 weeks before separation relied on the same objective information from the STR.  The Board opined that at separation the CI met the 10% rating IAW §4.130 specified as 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.  A 50% minimum rating for placement on reconstructive TDRL was mandated by VASRD §4.129 and DoD guidance, as noted above.  At the remote VA C&P examination the CI was happily married, off medications due to pregnancy and planning a future career in the health field.  She continued to have sleep disturbances and frequent dreams, with mildly depressed mood and an otherwise normal MSE.  Members agreed that based on the evidence in the records available, the CI’s anticipated disability due to the PTSD condition deemed stable at 6 months post-separation more likely than not met the 10% rating.  The Board reviewed to see if the PTSD condition met the higher rating of 30% and concluded it did not as there was no evidence in the records of intermittent inability to perform occupational tasks.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 10% for the PTSD condition IAW §4.130 

Right Knee Arthritis Condition.  The NARSUM notes that the CI had a history of multiple fractures involving the femur (upper leg), tibia and fibula (lower leg) of her right leg in an MVA while deployed.  She had open reduction and internal fixation procedures of the right femur and tibia, but had persistent pain of the right lower leg requiring the use of a cane for ambulation despite treatment.  The CI had a diagnostic arthroscopy in 2003 that showed swelling over one of the femur screws in the upper leg (which was removed) and degenerative changes of the knee and patella with intact ligaments and cartilage.  Right leg X-rays in August 2004 showed healed fractures of the femur, tibia and fibula with post-surgical changes and mild degenerative changes.  CT scan of the right leg in August 2004 was read as “a non-healing fracture of the tibia” but this was noted to be normal, without evidence of bony nonunion, per the orthopedic specialist.  At the MEB exam on 21 September 2004, approximately eight months before TDRL entry, the CI reported right knee and anterior leg pain that increased with activity.  The MEB physical exam noted well healed surgical scars of the right leg.  Right knee flexion-extension range-of-motion (ROM) was 0°-110° (normal 0°-140°), without evidence of laxity or instability, with decreased muscle strength of four out of five and painful motion.  At an orthopedic addendum completed on 09 November 2004, approximately 6 months before TDRL entry, the right knee was without effusion and was non-tender to palpation.  The remainder of the exam was unchanged from the MEB exam.  X-rays of the right knee in January 2005 were unchanged.  At the VA C&P exam on 19 April 2005, approximately 2 weeks before separation, the CI reported pain in the right knee.  She reported that the right knee gives way and that she had fallen many times.  The CI reported right leg pain of the femur and tibia that were “doing quite well” with pain “…maybe three times per week...”  The VA exam showed an antalgic gait on the right due to knee pain.  Right knee ROM was normal without instability or tenderness to palpation.  There was tender to palpation of the right tibia.  There were no post-separation records available regarding the CI’s knee condition.  The later VA Rating Decisions (VARD) in August 2007, November 2007 and April 2008 addressed only the PTSD condition.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the right knee condition as 5010 (traumatic arthritis) rated at 10%.  The VA coded the right knee condition as 5255 (residuals of femur fracture/femur impairment) rated at 10%; residuals of right tibia/fibula fracture as 5262 (tibia/fibula impairment) rated at 0%; and degenerative joint disease, chondromalacia patella as 5003-5260 (analogous limited leg flexion and arthritis) rated at 10%.  The Board first considered the rating of the right knee condition at the time of placement on the TDRL.  The Board opined that the CI had residual pain in her right knee due to traumatic degenerative changes related to her combined healed upper and lower leg fractures without evidence of instability, cartilage damage, or non-healing.  There was no compensable loss of ROM of the right knee noted at either the MEB or VA exams.  The CI had residual pain with degenerative changes of the knee demonstrated on imaging studies and arthroscopic surgery.  The Board agreed that the right knee could only be rated for pain IAW §4.59 (painful motion) at 10% at TDRL entry and there was no path to a higher evaluation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59, the Board recommends a TDRL entry disability rating of 10% for the right knee post-traumatic arthritis condition coded 5010.  The Board next considered the permanent disability rating of the right knee condition.  As noted there are no post-separation records available regarding the right knee condition.  The later VARDs addressed only the PTSD condition and the right leg ratings remained the same.  Notes in the STR indicated that the orthopedic specialist counseled the CI that post-traumatic degenerative joint disease would continue to be an issue in the right knee.  The Board agreed that based on the available evidence in the record the CI met the 10% rating for the right knee condition due to painful motion with post-traumatic arthritis at the time of re-evaluation of the of TDRL disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 and §4.59, the Board recommends a permanent disability rating of 10% for the right knee post traumatic arthritis 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.  In the matter of the PTSD condition, the Board unanimously recommends a reconstructive TDRL period of 6 months IAW VASRD §4.129 and DoD direction and unanimously recommends a TDRL entry disability rating of 50% and a permanent separation rating of 10% coded 9411 IAW VASRD §4.130.  In the matter of the unfitting right knee condition, the Board unanimously recommends a TDRL entry disability rating of 10% and a permanent separation rating of 10% coded 5010 IAW VASRD §4.71a  The Board agreed there were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends that the CI’s prior separation be modified to reflect that the CI was placed on TDRL at a combined 60% (PTSD at 50% IAW 4.129 and DoD direction) and then permanently separated with severance pay by reason of physical disability with a final combined 20% rating as indicated below:  

UNFITTING CONDITION | VASRD CODE | RATING
| | TDRL | PERMANENT
PTSD | 9411 | 50% | 10%
Right Knee Post Traumatic Arthritis | 5010 | 10% | 10%
COMBINED | 60% | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130506, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-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 XXXXXXXXXXXXXXXXXXXXX, AR20140004256 (PD201300235)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
60% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period no recharacterization of the individual’s separation or modification of the permanent disability rating of 20%.

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum as follows:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was separated with a permanent combined rating of 20% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 60% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

PD1300235