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AF | PDBR | CY2012 | PD2012 01819
Original file (PD2012 01819.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201819
BRANCH OF SERVICE: Army  BOARD DATE: 20130718
SEPARATION DATE: 20070516


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantryman) medically separated for chronic bilateral foot pain and posttraumatic stress disorder (PTSD). The CI has a long history of right foot pain. He underwent a bunionectomy on 28 December 2001. He did only fair postoperatively and continued to have pain. He was evaluated by podiatry at the Air Force Academy and in April 2005 underwent a second surgery with a right rear foot calcaneal osteotomy, patellar tendon advancement, and a first metatarsophalangeal joint dorsal cheilectomy. He reports that this has not improved his right foot pain, which has progressively gotten worse. The CI has reported numerous traumatic experiences during his deployments in Iraq. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB). The chronic bilateral foot pain and PTSD condition(s), characterized as medically unacceptable was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated chronic bilateral foot pain and PTSD, associated with major depressive disorder (MDD) condition(s) as unfitting, rated 10% and 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “The 20% rating I received from the Army was completely unfair, because the disability I have suffer from were and continue to be far worse than 20%. My right foot alone should have been enough to retire me, especially since I, was considered a career soldier who’s career was ended not because of a discipline problem but because of disability’s form my mental and physical sacrifice to the Army and my country. And I feel that I was completely taken advantage of because of the fact I was not in full mental health.”


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. The ratings for the unfitting chronic bilateral foot pain and PTSD conditions are addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON :

Service IPEB – Dated 20050704
 VA - (8 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Bilateral Foot Pain 5299-5279 10% Hallux Valgus, Right Great Toe with Degenerative Joint
Disease		 5281 10% 20070914
Posttraumatic Stress Disorder, associated with Major Depressive Disorder 9411 10% Posttraumatic Stress Disorder Associated with Panic Disorder with Agoraphobia and Dissociative Disorder 9411 100% 20070914
No Additional MEB/PEB Entries
 Other x 9
Combined: 20%
 Combined: 100%
Derived from VA Rating Decision (VA RD ) dated 200 80129 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Foot Pain Condition. Treatment records revealed the CI underwent right foot bunionectomy in 2001 of his first metatarsophalangeal joint (MTPJ). Magnetic resonance imaging of the right ankle on 18 January 2005, recorded a tear of the anterior talofibular ligament and anterior tibiotalar ligament. A small amount of fluid within the tibialis posterior tendon consistent with mild tenosynovitis was noted. In April 2005, the CI underwent a second surgery with a right rear foot calcaneal osteotomy, patellar tendon advancement, and a first MTPJ dorsal cheilectomy. The CI reported the surgery was not helpful. Radiographs of the right foot on 26 May 2005 demonstrated surgical fixation of the calcaneus with no evidence of fracture or other bone pathology and noted satisfactory surgical change of the calcaneus. Follow-up right foot radiographs revealed mild degenerative changes at the talonavicular articulation, and noted stable appearance of the calcaneus subsequent to internal fixation. Range-of-motion (ROM) recorded 19 July 2005, noted first MTPJ of less than 70 degrees (50-90). Right foot weight bearing radiographs on 6 November 2006, recorded surgical screw in place, calcaneal fracture healed without deformity, and some loss of the tarsal arch. ROM of the ankles approximately 5 months prior to separation, noted dorsiflexion to 90 degrees bilaterally (0-20), plantar flexion of the right ankle of 30 degrees compared to left ankle of 60 degrees (0-45), with pain elicited by motion of the right ankle. The right toe dorsiflexion to 20 degrees with plantar flexion of five degrees. There was no evidence of weakness or instability of either ankle.

At the MEB/narrative summary (NARSUM) approximately 2 months prior to separation, the CI reported the pain in his right foot had not improved and had progressively worsened. The CI continued to report bilateral foot pain, right greater than left, and stated he was unable to run or walk for long distances without pain. The CI reported right foot numbness with prolonged standing. The examiner diagnosed bilateral foot pain secondary to pes planus, hallux limitus and osteoarthritis. At the VA Compensation and Pension (C&P) exam performed on 14 September 2007, 4 months after separation, the CI noted daily right foot pain without flare ups or interference with daily activity. There was no mention of left foot pain. Physical examination revealed a height of 6’2” and weight of 319 pounds, and elevated blood pressure. The CI walked with a limp that mildly favored the right lower extremity. He was not using any assistive device. The examiner recorded bilateral pes planus, right ankle dorsiflexion limited to 10 degrees, plantar flexion of 20 and normal inversion/eversion. He wore shoe orthotics; he had no calluses or deformities of the toes. The right toe with dorsiflexion to 10 degrees with plantar flexion of 10. He has hammer toes 2-5 bilaterally.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the right foot condition analogously to the 5279 code (metatarsalgia, unilateral/bilateral) with a 10% disability rating. The VA rated the right foot condition at 10% coded 5281 (hallux valgus, operated with resection of metatarsal head). The VA additionally awarded 20% for status post calcaneal osteotomy, right ankle with degenerative joint disease coded 5271. The Board noted coding options 5279 and 5281 do not allow for a higher than the minimum compensatory rating. The Board considered code 5276; however, there was no evidence of callouses or marked deformity or pain on manipulation of the feet. Code 5277 was not applicable since there was no evidence of muscle atrophy, disturbed circulation, or weakness. 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 bilateral foot pain condition, but does recommend a change in the diagnostic descriptor to chronic right foot pain.

The Board’s main charge is to assess the fairness of the PEB’s determination that left foot condition as 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 left foot pain was profiled but noted to be less than the right. The service treatment records documented primarily right foot pain with intermittent notation of left foot pain. Left foot pain was not implicated in the commander’s statement and was not judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that the left foot 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 left foot condition. The ankle was not identified by the MEB or PEB; therefore it is not within the scope of this Board for review.

Posttraumatic Stress Disorder with Major Depression Disorder: The psychological addendum to the NARSUM noted the CI was deployed twice to Iraq from 2003-2004 and in 2006. A month after his return to the U.S. he was evaluated for PTSD. Mental health treatment records were not in evidence prior to separation, however the medication profile demonstrated psychotropic medication prescribed in November 2006 thru March 2007. The psychologist noted that the CI had been evaluated by the examiner and had participated in counseling. In December 2006, the CI reported insomnia, anger/irritability, paranoia, nightmares, avoidance behavior, decreased concentration, recurrent distressing memories, arousal, guilt, emotional numbing and depression. The psychologist noted the CI had limited improvement. Mental status examination (MSE) at the NARSUM revealed flat, sad, and anxious affect, without suicidal or homicidal content. Speech was normal, thoughts were clear without psychotic content. The psychologist diagnosed PTSD, chronic, severe, and MDD, single episode, severe without psychotic features, and noted both conditions caused definite impairment for social and industrial adaptability. A Global Assessment of Functioning (GAF) score of 50 was assigned. The commander’s statement, dated 25 February 2007, approximately 3 months prior to separation, stated “his work is still satisfactory and he is able to work well with his co-workers although his symptoms bother him mostly at night except for depression which is controlled by his medication.” The commander indicated the CI was exposed to several traumatic events during each deployment.

At the C&P psychiatric evaluation, on 14 September 2007, approximately 4 months after separation, the physician noted the existence of a mental health intake in August 2007 from a different VA facility. The CI reported nightly nightmares with awakenings in a heavy sweat, and palpations lasting for about 10 minutes. He also reported dissociative episodes and flashbacks daily. The CI indicated he had worked for 3 months but the amount of lifting aggravated his feet and ankle problems such that he could not continue in the job. Since leaving his job he spends time with former Army friends and tries to keep busy with house chores. The CI has a girlfriend. On MSE, the CI was noted to be hypervigilant, and was inattentive. He reportedly described suicidal ideas. The examiner diagnosed PTSD, chronic, severe, panic attacks with agoraphobia and dissociative disorder and alcohol dependence. He was also diagnosed with major depression secondary to PTSD associated with suicidal ideas, and attention deficit hyperactivity disorder by history. The physician assigned a GAF of 28 without referral for hospitalization.

The Board directs its attention to the question of §4.129 applicability and the rating recommendations based on the evidence just described. The PEB rating, as described above, was derived from AR 635-40 and preceded the promulgation of the National Defense Authorization Act 2008 mandate for Department of Defense (DoD) adherence to VASRD §4.129. Likewise, the VA did not apply §4.129. The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD 4.129 to all Board cases as appropriate), accepts the §4.129 specification that it is applicable to any “mental disorder that develops in service as a result of a highly stressful event [that] is severe enough to bring about the veteran’s release from active military service;” and, it was readily agreed that the operant definition was met by the psychiatric condition(s) evidenced in this case. All members agreed that the §4.130 criteria for a rating higher than 50% were not met at the time of separation and therefore the minimum Temporary Disability Retired List (TDRL) rating is applicable and, will thus recommend a minimum 50% PTSD rating for a retroactive 6-month period on the TDRL.

The Board must then determine the most appropriate fit with VASRD §4.130 criteria at the end of TDRL period for its permanent rating recommendation. The Board noted only one evaluation in the record of evidence, the C&P examination, 4 months after separation; thus, the only evidence available in deliberating the permanent disability rating. The PEB rated the condition at 10% coded 9411 for mild industrial impairment, citing the CI was able to perform his duty in the garrison. The VA coded the condition 9411, assigned 100% rating based on §4.130 criteria. The NARSUM psychologist judged the CI’s social and industrial impairment as “definite” and recommended outpatient treatment. The NARSUM examination was most consistent with the general description for a §4.130 rating of 30% for “occasional decrease in work performance.” The CI indicated he had obtained an Associates’ degree after attending college for 2 years from 2009-2010; and had worked for 2 years, part of which was full-time and then cut down to part-time because he could not physically handle the work. He married in and reported good relationship with wife. He had friends and hobbies that included construction, and gardening. There was no documented history of visits to emergency room, no hospitalizations, and no legal difficulties. The CI stated he had not received counseling since 2007, although he continued taking Prozac. All members agreed that the 50% permanent disability rating threshold was not approached. The MSE from the C&P evaluation does not support the 50% rating. The CI’s affect was not flattened, there was no evidence of impairment in judgment, no evidence of psychosis, no evidence of frequent panic attacks and although the CI reportedly described suicidal ideations, the record in evidence contained no entry related to treatment or emergency care for suicidal thoughts. The Board’s deliberations were centered therefore on evaluation of the 10% and 30% permanent rating recommendation. The Board opined the CI’s condition was chronic, but appeared stable. His occupational impairment was recorded as being related to his physical condition and not his mental health; therefore, the Board opined his functioning was most consistent with a 10% rating. The CI was able to work around others without report of mental distress related to PTSD or depression. After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 10% permanent disability 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. 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 bilateral foot pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the PTSD associated with MDD condition, the Board unanimously recommends application of VASRD §4.129 with a disability rating of 50% for 6 months retroactively and a subsequent permanent disability rating of 10%, coded 9411, IAW VASRD §4.130.


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

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
Chronic Right Foot Pain 5299-5279 10% 10%
PTSD Associated With Major Depressive Disorder 9411 50% 10%
COMBINED 60% 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121007, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130018753 (PD201201819)
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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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