RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Army

CASE NUMBER: PD1000982 SEPARATION DATE: 20070930

BOARD DATE: 20120120

SUMMARY OF CASE: : Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SGT/E-5 (68W, Health Care Specialist), medically separated for anxiety disorder and a right shoulder condition. The shoulder condition resulted from a 2003 injury in Iraq that resulted in medical evacuation and required surgery in 2004. The anxiety disorder was diagnosed three months prior to separation. Additionally the CI was diagnosed with obstructive sleep apnea (OSA) several months prior to separation. He did not respond adequately to post-operative rehabilitation for his shoulder or outpatient management of his psychiatric condition and required a continuous positive airway pressure (CPAP) device for control of the OSA condition. He was consequently unable to perform within his Military Occupational Specialty (MOS) or meet physical fitness standards; was issued permanent P3, U3 and S3 profiles and was referred to a Medical Evaluation Board (MEB). After initial varying MEB submissions and Physical Evaluation Board (PEB) adudications, to be detailed below, chronic right shoulder pain, anxiety disorder and OSA were forwarded to the PEB as medically unacceptable conditions IAW AR 40-501. Three other conditions, as identified in the rating chart below, were identified by the MEB and forwarded as medically acceptable conditions. Other conditions included in the Disability Evaluation System (DES) file will be discussed below. The PEB adjudicated the anxiety disorder and right shoulder condition as unfitting, rated 10% and 0% respectively, with application of Department of Defense Instruction (DoDI) 1332.39 and the US Army Physical Disability Agency (USAPDA) pain policy, respectively. The OSA and remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated with a 10% combined disability rating.

CI CONTENTION: “When I was medically separated from the Army during my MEB/PEB, I was rated 0% for RT Elbow and PTSD [post-traumatic stress disorder] but I was awarded 10% for my torn RT Shoulder from the MEB/PEB. I am currently rated 30% for my RT Elbow and RT Shoulder. I am rated 100% permanent and home bound for PTSD. I have been granted Special Monthly Compensation and Housebound benefits due to the severity of my disabilities. I am currently awaiting a decision for Traumatic Brain Injury, Major Depressive Disorder, and Light Sensitivity.” Additionally, his legal counsel requests that the “PDRB [sic] review the records pertaining to his MEB and PEB and reevaluate the ratings that he was given in light of the VA determinations made both before and immediately following his separation … We believe that it is clear he should have been medically retired rather than separated.” The CI additionally lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

*All conditions effective 20060224 (20 months prior to separation from preceding tour of active duty); except for PTSD,

effective 20071001 (one month prior to separation). Combined rating at the time of separation was 80%.

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board wishes to clarify that it is subject to the same laws for Service disability entitlements as those under which the DES operates. The DES has neither the role nor the authority to compensate Service 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 (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. The Board also acknowledges the CI's contention suggesting that service ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service-connected by the VA). While the DES considers all of the Service member's medical conditions, compensation can only be offered for those medical conditions that cut short a Service member’s career, and then only to the degree of severity present at the time of final disposition. The DVA; however, is empowered to compensate service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Additionally the Board makes note that there was some confusion as to the CI’s primary MOS (PMOS) at the time of the MEB/PEB, as evidenced by variable notations of the MOS 92F (Petroleum Supply Specialist) or the MOS 68W (Health Care Specialist) on different documents. As a means of clarification, Service records during the CI’s deployment to Iraq (2003 – 2004) clarify that the CI was functioning under the 92F MOS at that time; although many post-deployment entries infer that he was functioning as a medic during that deployment. The CI was awarded the PMOS of 68W approximately a year prior to separation (20061117); and, the Board therefore applied the physical and mental requirements of the medical MOS to its recommendations related to this case.

Anxiety Disorder. Anxiety disorder was not on the original DA Form 3947 that was finalized by the MEB on 9 July 2007; only the OSA and right shoulder conditions were submitted for PEB review. On 13 July 2007, the PEB determined that the CI was fit for duty in respect to both submitted conditions. The CI appealed the PEB’s findings and requested a formal board. Before a formal board could be convened, however, the MEB submitted a revised DA Form 3947 (dated 27 September 2007) that added PTSD as a third medically unacceptable condition. Since the submitted psychiatric addendum diagnosed anxiety disorder, not PTSD, the PEB discontinued the proceedings and requested verification of stressors and clarification of the psychiatric diagnosis. No such verification or clarification was provided by the MEB; but, rather, a revised DA Form 3947 was submitted (dated 1 October 2007) that identified anxiety disorder as the medically unacceptable psychiatric condition. The definitive PEB adjudication effecting the CI’s medical separation was therefore based on the diagnosis of anxiety disorder. It is noted that there are outpatient Service mental health evaluations in evidence which suggested the diagnosis of PTSD, although there were conflicting psychiatric opinions in that regard.

The PEB rating for anxiety disorder was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to VASRD §4.129. IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases), the Board is obligated to recommend a minimum 50% rating for a retroactive six-month period on the Temporary Disability Retired List (TDRL) when §4.129 attaches (by precedent, whether or not the established diagnosis is PTSD). Therefore, the Board first deliberated over whether the requirements of §4.129 applied to the adjudication of this case, i.e., did this condition develop in service as a result of “a highly stressful event.” The psychiatric addendum submitted by the MEB one month prior to separation documented that, while deployed to Iraq, the CI “cared for a number of mutilated and injured and dying soldiers; went on patrols; got shrapnel in the skin of his head, fell from a guard tower; and buried five fellow soldiers.” The psychiatrist opined that the anxiety disorder was “manifested by exposure to traumatic events that elicited feelings of fear and horror and helplessness.” As the MEB did not provide verification of the cited stressors which would satisfy the requirements for application of §4.129, the Board sought verification in the service treatment record (STR). The STR contained treatment notes for the CI’s injuries related to his fall from a guard tower, but provided no indication for treatment of shrapnel wounds or any mention of combat-related injuries. Historical accounts in evidence from the VA state that the CI was blown from the tower by an explosion, resulting in a 15 foot fall and loss of consciousness. The line-of-duty report following redeployment states, “soldier was climbing down from guard tower and lost footing and pulled shoulder.” Identical accounts were provided by in-theater treatment notes from two separate providers. The VA psychiatric evaluation which established an Axis I diagnosis of PTSD contained the same contradictory account of the guard tower incident, a history of operations as a combat medic, and multiple incidents of hostilities and carnage which cannot be corroborated; although, many are not directly refuted by the evidence available to the Board. On balance, however, all members agreed that the stated stressors referenced by the MEB psychiatrist were of compromised probative value; given the contradictions that are in evidence, and the lack of any verification after an express request from the PEB to provide it. After protracted deliberation, the Board could not satisfy itself that the requirements for application of §4.129 were sufficiently demonstrated in this case; and, cannot therefore support a recommendation for a constructive period of TDRL followed by a permanent rating recommendation.

The psychiatric severity at the time of separation is summarized in the psychiatric addendum to the narrative summary (NARSUM) and corroborated in the outpatient mental health notes which preceded it. The addendum documented recurrent nightmares, an exaggerated startle response, flashbacks, avoidance, irritability, anger, panic attacks, and depressed mood. The CI had commenced Behavioral Health treatment 2-3 months earlier, and was prescribed two psychotherapeutic medications at the time of separation. The mental status examination (MSE) was normal except for depressed and irritable mood with congruent affect. Behavior was described as friendly and cooperative; all spheres of cognition were normal; and, there was no evidence of suicidal/homicidal ideation or delusional/psychotic features. Socially, the CI was in a stable marriage with a supportive wife, and had two children. Occupationally, the commander’s statement indicated that the CI had a “natural ability with people, strangers, or friends, and it’s evident in the way he carries himself; and there was no indication that he had any interpersonal issues related to the people in his workplace.” He was working outside his MOS doing administrative work; and, the commander indicated that he maintained “an acceptable level of attention and concentration,” commenting that his effectiveness had increased because he is able to work at his own pace. The commander caveated, however, that sporadically “his mind is focused elsewhere.” The Global Assessment of Functioning (GAF) score assigned by the MEB psychiatrist was 65, indicative of mild difficulty in social or occupational functioning. The DoDI 1332.39-derived assessment of military impairment was ‘marked,’ but impairment of social and industrial adaptability was noted as ‘slight.’ The psychiatrist did note that the CI had only been in treatment for two months; that his progress had been minimal; that his condition was not stable; and that his short term prognosis was guarded.

The Board then directed its attention to the appropriate VASRD §4.130 based rating for the anxiety disorder based on the above evidence. All members agreed that the §4.130 criteria for a 50% rating (occupational and social impairment with reduced reliability and productivity) were not supported. The Board therefore deliberated between 10% (occupational and social impairment due to mild or transient symptoms which decrease work efficiency … only during periods of significant stress) and 30% (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks) ratings. Despite the acute symptoms which were endorsed, the objective social and occupational functioning was not significantly impaired. The commander’s observations regarding periods of apparent distraction could be surmised to have affected efficiency; but, not on a constant basis and not to a degree which precipitated lapses in performance. It was noted from the VA evidence that the CI was in pursuit of a nursing degree and employed full time soon after separation; and, there was no STR documentation of intermittent periods of inability to perform occupational tasks during the MEB process. All members agreed therefore that 30% criteria were not met, and that the §4.130 description for a 10% rating was the best fit with the evidence. After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board does not find adequate support for recommending a change in the PEB adjudication of anxiety disorder in this case.

Right Shoulder Condition. The CI’s shoulder injury occurred during the guard tower incident previously elaborated. Subsequent accounts describe significant blunt trauma and dislocation, although the concurrent evidence suggests a traction injury; and, imaging revealed a rotator cuff tear which is consistent with that mechanism. Arthroscopic surgery after redeployment restored stability and joint integrity, but painful and limited motion was recalcitrant to attempts at post-surgical rehabilitation. There were two probative goniometric range of motion (ROM) evaluations, with documentation of all ratable parameters, which the Board weighed in arriving at its rating recommendation. These are summarized in the chart below.

* Based on application of §4.59 (painful motion).

There was no significant differences between the noncompensable ROM measurements provided by sequential examiners. Both the PEB and the VA applied analogous codes which defaulted to 5003 (degenerative arthritis) rating criteria. The VA’s 10% rating was based on painful and limited motion; and, the PEB’s 0% rating was supported by the USAPDA pain policy. MEB documentation of painful motion, however, supported a PEB rating of 10% IAW VASRD §4.71a. There is no clinical and/or radiologic evidence in Service or VA records that suggested ankylosis, loss of the humeral head, nonunion, malunion, fibrous union, deformity, nonunion or dislocation of the scapula, or recurrent dislocations of the humerus that would have justified any code with higher rating potential. After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a Service disability rating of 10% for the right shoulder condition. The action officer prefers the 5024 (tenosynovitis) code for its clinical fit.

Other PEB Conditions. The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were OSA, right ulnar nerve transposition, right knee pain, and epigastric pain. The Board’s main charge in respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering DES 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 CI’s dependence on CPAP for treatment of his OSA condition underlied the MEB’s assessment that it was medically unacceptable. The NARSUM stated that the CI “must have access to electricity at all times which prevents deployment;” although, the pulmonology consultant four months prior to separation stated that “if he is able to complete his duties and have access to electricity, there is no indication to proceed with a MEB for OSA.” Routinely OSA is not considered unfitting solely on the basis of field and operational impediments to the use of CPAP. There is no evidence in this case that OSA was associated with any unfitting impairments not corrected by CPAP. The PEB’s fitness adjudication was therefore expected and reasonable. Right ulnar nerve transposition was a surgical procedure performed in 2005 for cubital tunnel syndrome that resulted from elbow trauma sustained in the same fall which produced the shoulder injury. At separation the CI manifested a mild residual sensory neuropathy in the ulnar digits and slightly diminished (4/5) right grip strength. Electrodiagnostic studies, however, were normal and there is no evidence documenting functional impairment critical to MOS-specific activities. The right knee condition was diagnosed as tendonitis, with pain dating to 2001 and recurring intermittently. There were past temporary profiles for the condition, but none were in effect at separation. A normal knee exam, normal ROM, and normal x-ray were documented by the MEB. The CI’s epigastric pain was related to chronic use of anti-inflammatories for his orthopedic conditions and was exacerbated by an accidental ingestion of a cleaning chemical five months prior to separation. He was evaluated by a gastroenterology consultant at three months prior to separation, who scheduled upper endoscopy, although there is no evidence that it was performed. The CI was on no gastrointestinal medication at separation, and there was no mention of this condition in subsequent VA records. Other than OSA, none of the above conditions were profiled at separation; none were implicated in the commander’s statement; and all were judged to meet retention standards by the MEB. All were reviewed by the action officer and considered by the Board. There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance. All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change in the PEB fitness adjudication for any of the stated conditions.

Remaining Conditions. The only other condition identified in the DES file was seasonal allergies. Several additional non-acute conditions or medical complaints were also documented. None of these conditions were of clinical or occupational significance during the MEB period; none carried attached profiles; and none were implicated in the commander’s statement. These conditions were reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. No other conditions were service connected with a compensable rating by the VA within 12 months of separation or contended by the CI. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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 the shoulder was operant in this case, and the condition was adjudicated independently of that policy by the Board. In the matter of the anxiety disorder, the Board unanimously agreed that application of VASRD §4.129 was not supported; and unanimously recommends a rating of 10% coded 9413 IAW VASRD §4.130. In the matter of the right shoulder condition, the Board unanimously recommends a rating of 10% coded 5024 IAW VASRD §4.71a. In the matter of the OSA, right ulnar nerve, right knee, and epigastric conditions, the Board unanimously recommends no change from the PEB adjudications as not unfitting. The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

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

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20100815, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for

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

Deputy Assistant Secretary

Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA