RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300988
BRANCH OF SERVICE:  Army	BOARD DATE:  20140513
Separation Date:  20090811

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantry) medically separated for a right knee condition.  The CI injured his right knee in an improvised explosive device (IED) explosion on 24 April 2007 in Iraq.  He was medically evacuated from Iraq and underwent surgical procedures on his knee at the 28th Combat Support Hospital in Iraq, again in Baghdad, Iraq and again in Landstuhl, Germany before being transferred to his home station.  He was evaluated for his mental health (MH) condition diagnosed as adjustment disorder with disturbance of emotions and conduct on 13 November 2008.  His right knee 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/S3 and referred for a Medical Evaluation Board (MEB).  The right knee condition, characterized as “right knee pain secondary to patellar tendonitis and shrapnel injury,” and his MH conditions characterized as “Intermittent Explosive Disorder” and “Adjustment d/o with disturbance of emotions and conduct” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as not meeting retention standards.  The MEB also identified and forwarded his “hearing loss” condition for PEB adjudication as meeting retention standards.  The Informal PEB adjudicated the “right knee pain…” condition as unfitting, rated 10%.  The MH conditions were determined to not constitute a physical disability and are not ratable.  The hearing loss condition was determined to be not unfitting.  The CI made multiple appeals to include an appeal to the Formal PEB (FPEB).  His appeals contended that he had been given the diagnosis of posttraumatic stress disorder (PTSD) by one psychiatrist.  The FPEB upheld the original findings and the CI was medically separated.

CI CONTENTION:  The CI attached a 14 page statement to his application which was reviewed by the Board and considered in its recommendations.

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.  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 military Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

RATING COMPARISON:

Service FPEB – Dated 20090402 | VA - (4 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Right Knee Pain Secondary to Patellar Tendonitis… | 5099-5003 | 10% | Traumatic Right Knee Arthrotomy… | 5024-5261 | 20% | 20090423
Intermittent Explosive d/o | Not Ratable | PTSD with Major Depression | 9411 | 70% | 20090424
Adjustment d/o with Disturbance of Emotions and Conduct | Not Ratable | | | |
Hearing Loss | Not Unfitting | Bilateral Hearing Loss | 6100 | 0% | 20090423
No Additional MEB/PEB Entries | Other x 6 | 20090423
Combined:  10% | Combined:  80%

ANALYSIS SUMMARY:  The Board also acknowledges the CI’s contention that suggests a higher service rating should have been granted at the time of separation.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Right Knee Pain Secondary to Patellar Tendonitis and Shrapnel Injury Condition.  The CI injured his right knee as a result of an IED blast while deployed in 24 April 2007.  He underwent several surgical procedures to clean the right knee joint prior to his transfer.  In May 2007, after transfer out of the deployment area, the CI underwent two additional surgical procedures to further clean the knee.  After these procedures, the CI was fitted for a right knee brace, given a cane for ambulation by physical therapy (PT) and sent to his stateside base.  He was seen by orthopedics who noted pain in the infrapatellar region, occasional give-away, morning stiffness and the need for a cane due to an antalgic gait.  The physical exam findings were tenderness to palpation (TTP) of the incision and below the patella, full active range-of-motion (ROM), mild atrophy of the quadriceps mild atrophy, and stable ligaments.  A CT scan demonstrated a calcification lateral to the patella and a small osteochondroma.  The orthopedist continued to indicate knee tenderness with stable ligaments and diagnosed an intra-articular loose body from a probable patellar fracture.  A right knee diagnostic arthroscopy and loose body excision was performed in December 2007.  The orthopedist noted minimal tenderness with full ROM after the arthroscopy.  The CI continued to be followed by PT and orthopedics with continued focal tenderness over the patellar tendon and anterior aspect of the joint line; however, full ROM.  Right knee pain secondary to patellar tendonitis and shrapnel injury was diagnosed.  The PT noted the need for ambulation with a cane and knee brace with strength limited by pain.  The PT physical exam findings are summarized in the chart below.  The commander’s statement focused on the CI’s inability to perform his MOS due to the right knee condition only.  The MEB narrative summary (NARSUM) exam performed approximately 12 months prior to separation indicated that the CI continued with right knee pain despite aggressive PT and orthopedics evaluations.  The MEB NARSUM physical exam findings are also summarized in the chart below.  The CI was given a permanent L3/S3 profile for right knee pain/tendonitis and an MH condition with additional restrictions pertaining to the knee noted on the profile.  The VA Compensation and Pension (C&P) exam completed approximately 5 months prior to separation documented pain at rest and guarding of movement of the knee.  The VA C&P physical exam findings are summarized in the chart below.  There were goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as follows:

Knee ROM (Degrees) | PT ~13 Mos. Pre-Sep exam | MEB 12 Mos. Pre-Sep | VA C&P ~4 Mos. Pre-Sep
| Right | Right | Right
Flexion (140⁰ Normal) | 120 | Used ROM’s from PT exam; focal TTP over patellar tendon anterior aspect of lateral joint line | 110
Extension (0⁰ Normal) | 0 | | 15
Comment | Pos. pain limited motion; No Deluca criteria; Neg. Lachman’s; No weakness | | Pos. painful motion; No Deluca criteria

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB coded the right knee pain secondary to patellar tendonitis and shrapnel injury condition as 5099 analogous to 5003 (degenerative arthritis) and rated it 10% citing painful motion without compensable ROM measurements and no instability.  The VA coded the traumatic right knee arthrotomy secondary to IED blast with shrapnel wound condition as 5024-5261, limitation of leg extension, and rated it 20% based on the C&P exam ROM of 15 degrees extension.  The MEB NARSUM used the PT ROM’s which were measured approximately 13 months prior to separation.  The Board agreed that the VA C&P exam was more proximate to the time of separation and therefore had a higher probative value.  The VA C&P examiner documented that the right knee ROM demonstrated extension limited to 15 degrees.  There was no other evidence of knee disability that would allow for an additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right knee pain secondary to patellar tendonitis and shrapnel injury condition coded 5024-5261.

Contended Hearing Loss Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that Hearing loss was not unfitting.  The hearing loss condition was not profiled (permanent profile always H1) or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the hearing loss 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 hearing loss contended condition and so no additional disability rating is recommended.

Contended Intermittent Explosive Disorder and Adjustment Disorder Conditions.  The contended MH conditions adjudicated as not unfitting by the FPEB were intermittent explosive disorder and adjustment disorder with disturbance of emotions and conduct.  The Board reviewed the file for evidence that an MH diagnosis was changed or eliminated to the CI’s possible disadvantage while in the DES.  The permanent S3 profile, completed in January 2009 to initiate the DES process, identified the MH condition as “thoughts of harm to others, explosive temper, disturbances of conduct,” further annotating “Intermittent Explosive Disorder and Adjustment Disorder with Disturbance of Emotions and Conduct.”  There were no other profiles present for review.  The service treatment records reflect that prior to entry into the DES process; the CI was primarily diagnosed with adjustment disorder, explosive disorder, with the diagnoses of PTSD being made only once, along with the explosive disorder diagnosis.  The MH diagnoses of intermittent explosive disorder and adjustment disorder were consistently applied and not changed to the CI’s disadvantage in the DES process.  However, since the PTSD diagnosis was not considered during the DES process, this case appeared to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board notes that the PEB adjudicated both MH conditions were, “…not a physical disability and is not ratable per DoDI 1332 38, E5….”  The Board noted that the FPEB used an incorrect citing of DODI 1332.38 in that adjudication, citing E5.1.2.9.5 & E5.1.2.9.4 instead of the correct E5.1.3.9.5 &E5.1.3.9.4 for the intermittent explosive disorder and adjustment disorder respectively (administrative change only related to the numbering convention).  The Board reviewed the MH conditions for “fitness” and possible rating (under VASRD 4.130) if determined to be “unfitting” for military service.  After his return stateside for rehabilitation, the CI underwent an initial psychological assessment by a psychologist at a Veterans service center who concluded that the CI “…presented with no mood or cognitive concerns.”  Prior to entry into the DES process, there was no other documentation in the service treatment record (STR) of impairment due to an MH condition such as: hospitalizations, emergency care, or loss of duty time attributed to an MH condition that would contribute to an unfit determination.  The MH conditions of “thoughts of harm to others, explosive temper, disturbance of conduct, Intermittent Explosive d/o and Adjustment d/o with Disturbance of Emotions and Conduct” were specifically identified on the permanent profile prepared at entry into the DES process.  The commander’s statement, completed within a year of separation, after annotating that the CI had been diagnosed with an MH condition, only identified the CI’s non-MH condition as causing duty impairment.  The commander responded “Yes” to all questions in Section III, Industrial Capacity-used for soldier’s with a psychiatric disorder, indicating no MH condition was responsible for any occupational impairment.  Although an MH condition surfaced after DES referral (hospitalization and S3 profile with restricted access to firearms presumably based on a credible homicidal threat the CI made against his PEB liaison officer), there is no evidence that it had any significant impact on performance throughout the CI’s military career.  The Board must consider this factor in its assessment of its fitness determination.  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 an MH condition prohibited the performance of the duties required of his MOS prior to DES referral.  Although it is acknowledged that the late evolution of the condition in the CI’s career did not provide for an adequate trial of performance after the diagnosis, there were no clinical features or specific functional limitations which would render the condition inherently unfitting.  Board members agreed that there was an MH condition present, primarily an underlying personality disorder that served as a substrate for the CI’s behavior, which was not problematic prior to DES entry.  After due deliberation in consideration of the preponderance of the evidence, Board members agree that the MH condition was “not unfitting” and so no additional disability rating is recommended.

The CI made multiple appeals to the PEB and contended that he was diagnosed with PTSD and this should be considered as an unfitting condition.  The Board next reviewed the record to make its recommendation regarding the diagnosis of PTSD.  The Board’s threshold for recommending a change in diagnoses identified by the MEB and adjudicated by the PEB requires a preponderance of evidence.  The psychiatric addendum to the NARSUM completed approximately 16 months prior to separation noted a pattern of vengeful anger, feelings of homicidal urge and intent both in the military and prior to entrance.  The mental status exam documented that the CI frequently delivered expletives about his command, some bravado regarding his violent achievements, angry mood, irritable affect, impaired judgment and insight, homicidal ideations were spoken of in the past and present, reported “visions” (hallucinations) and recurrent nightmares.  The examiner opined that the CI did not meet criteria for PTSD- there was no one single clearly identified traumatic event that met criterion A.  The Board reviewed the record for criteria A related evidence and noted the following passage:

“He related and described on-going dreams of the blast that injured him in theatre and is “feeling the same.”  In exploring the events prior to, during and after he related growing up never being afraid of “anything,” or “any man,” but when he was blown up he felt fear.”

The Board members agree that the IED blast that injured the CI qualifies as a criterion A stressor.  The CI referred to symptoms of hypervigilance, nightmares and flashes of bad things in June 2008; and the examiner further opined that the CI variably endorsed several symptoms of Criterion D as well as Criterion E; however, the impairment in social and occupational function was linked to symptoms of emotional trauma, poor coping strategies and physical limitations but not to a PTSD diagnosis.  The examiner diagnosed intermittent explosive disorder and adjustment disorder with disturbance of emotions and conduct; and assigned a Global Assessment of Function (GAF) of 55 (moderate difficulty in social, occupational or school functioning.)  Anti-social personality traits were also identified.  Notes in the STR from psychology, social work and psychiatry from January 2008 through to July 2008 documented a diagnosis of adjustment disorder with disturbance of emotions and conduct.  In April 2009, the CI was seen by psychology for complaints due to the traumatic event he witnessed while deployed.  He reported fear, disgust, hate, anger and helplessness when the event took place.  Since the event, the CI endorsed nightmares, hallucinations and hearing voices talking to him outside his head, insomnia due to nightmares.  The psychologist diagnosed him with chronic PTSD without specifically addressing each criterion for PTSD.  The VA C&P psychiatric exam accomplished almost 5 months prior to separation recorded the CI was diagnosed with PTSD and was treated on base for that diagnosis.  The CI reported nightly nightmares, hyperarousal, daily intrusive thoughts, memories and recollections, drenching night sweats, hypervigilance, pervasive emotional detachment, psychic numbing and isolation, severe startle response.  The examiner diagnosed chronic, severe PTSD, recurrent, moderate major depression without psychotic features and assigned a GAF of 43 (serious impairment in social, occupational, or school functioning.)  In May 2009, there were two calls placed to a provider that the CI verbalized a credible and high level risk for lethal violence towards his PEB liaison officer which precipitated a series of warnings to the intended victim.  Two days later the CI reported to his psychologist that he had only been venting during his walk-in visit and that he understood that the nature of his statements resulted in the need for hospitalization and he remained somewhat angry at the intended victim.  The psychologist diagnosed PTSD; however, Criteria F was not documented, and therefore, clinical evidence did not support the diagnosis.  The Board reviewed the record for post-separation evidence that may reflect on the CI’s MH condition at his DOS.  A C&P exam performed 21 months after separation documented that the CI was living in Guam and still experiencing symptoms of PTSD and contained the following statement:

“He is pursuing educational goals.  He is not currently employed. The veteran is a full time student and hasn't worked since he left the service.  The veteran had been performing well in school until he [his] two uncles died in March and he missed classes and his grades suffered.  He generally got along well with co-workers and supervisors in the service but tended to keep to himself.  He has been working for 4 years at his most recent job.  The veteran experienced mild impairment due to impaired concentration.  He misses approximately no days of work a month.  The veteran has been married 6 years and reports a stable marriage.  The veteran engages in occasional social and leisure activities.  He denied current substance abuse.  Activities of daily living are not impaired.  He is not engaged in treatment for PTSD.  The veteran is not taking medication for PTSD.  He experiences back pain and knee problems.  There are no recent hospitalizations.  He denied assaultiveness.  The veteran denied suicidal ideation.”

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 diagnoses of intermittent explosive disorder (impulse control disorder) and adjustment disorder.

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 DoDI 1332.38 for rating the mental health conditions was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the “Right Knee Pain Secondary to Patellar Tendonitis” and “Shrapnel Injury” condition, the Board unanimously recommends a disability rating of 20%, coded 5024-5261 IAW VASRD §4.71a.  In the matter of the contended “Intermittent Explosive Disorder, Adjustment Disorder with Disturbance of Emotions and Conduct” conditions, the Board unanimously recommends no change in the PEB diagnosis and that no unfitting MH condition be added to the disability record.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Right Knee Pain Secondary to Patellar Tendonitis and Shrapnel Injury | 5024-5261 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130403, 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, AR20140017398 (PD201300988)

1.  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 to modify the individual’s disability rating to 20%  without recharacterization of the individual’s separation.  This decision is final.  

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.   

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1300988