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AF | PDBR | CY2012 | PD2012 01888
Original file (PD2012 01888.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201888
BRANCH OF SERVICE: Army  BOARD DATE: 20130604
SEPARATION DATE: 20060730


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (25U38/Signal Support System Specialist) medically separated for chronic bilateral leg and knee pain. He originally injured his right knee in a motor vehicle accident in 1993 and the pain worsened in 1999 secondary to running and riding inside the Humvee. Then in October 2003 he was injured by a mortar round in Iraq that caused him to land hard on his knees and he was left with shrapnel embedded in his left thigh. The bilateral leg 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 profile and referred for a Medical Evaluation Board (MEB). The bilateral leg pain and bilateral knee pain conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 and no other conditions were submitted by the MEB. The PEB adjudicated the bilateral leg and knee pain as one unfitting condition, rated 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated.


CI CONTENTION: “My 1st chief complaint for a MEB was PTSD and the 2nd was LEG KNEE pain from being the primary victim of a mortar round explosion 31 October 2003. I didn’t know the severity of PTSD at the time, but was being treated at the time of my discharge. When I received a copy of my records at a later date, I noticed that every copy of my medical and MEB history was there but my PTSD complaint to the PEB, which included a full page PTSD statement to the MEB of my days of not being able to sleep, the nightmares, the different triggers and flashbacks at work and home. The statement told everything I was going through, including the heavy drinking just to help me cope and not think about the memories of the war in Iraq. I would have periods of being stable, but still would have the physical pains and mental stresses every so often that I felt I was losing control over my once strong mind and body. When it became noticeable to my chain of command, it was obvious that I needed more help than I was in denial of needing. My command insisted that I enroll myself into a full PTSD program, or be administratively enrolled. I quoted a statement in my memo addition in item 13 by the psychiatrist who evaluated my PTSD claim that troubled me for a long time, but did nothing about it. I’ve built and strengthened my integrity as an NCO. I say that because it would be that psychiatrist’s word against mine and who would believe me anyway I thought? My marriage was crumbling, the physical pains became worse, and the anxiety panic attacks when alone became a big concern that I couldn’t focus. I was looking beyond drinking to help me cope that no one could know about. I felt afraid and I couldn’t face or trust anyone nor was I in my right mind to challenge any findings by the MEB or PEB at that time and was told that once the findings were final then there was nothing left to do, but try and face life outside the military. I have physical limitations that affect my job performances and PTSD issues that challenge my very being at times, so I still seek treatment form (sic) the VA to help cope with emotions that won’t ever leave me.”

The CI also attached a four page statement to his application which was reviewed by the Board and considered in its recommendations. The statement in this separate document that he mentions above was regarding the psychiatric addendum to the narrative summary (NARSUM). He states that, “when we finished the examination he explained that I did in fact have multiple symptoms of PTSD and to just continue my treatments until my separation and it’ll be up to the VA when I get out. The part that bothered me and stuck with me and when he said, ‘besides we don’t want the military giving you guys too much money, right.’ as he smiled slightly shaking my hand, and then wished me well.”


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 rating for the unfitting bilateral leg condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. The requested PTSD condition was not specifically forwarded by the MEB as meeting retention standards, and was not specified in the PEB determination. However, because the PEB temporarily discontinued proceedings pending return of a psychiatric assessment of PTSD, the Board members agreed that the PEB's omission was likely an oversight, with the underlying assumption that the PEB considered the condition to be not unfitting. The PTSD condition is therefore conceded as meeting the DoDI 6040.44 requirements for Board consideration, and is addressed below. 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 (BCMR).

The Board acknowledges the CI’s contention for Service ratings of his PTSD condition; and, emphasizes that Service disability compensation may only be offered for those conditions that cut short the member’s service career. Should the Board judge that the contested condition was most likely incompatible with the specific duty requirements, a Service disability rating IAW the VASRD and based on the degree of disability evidenced at separation will be recommended. The Board also acknowledges the CI’s assertions that his disability disposition was rushed and did not take into consideration his ongoing PTSD condition. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.


 RATING COMPARISON :

Service IPEB – Dated 20060322 VA - (3 Mos. Pre -Separation)
Condition Code Rating Condition Code Rating Exam
Chronic Bilateral Leg and Bilateral Knee Pain 5099-5003 10% Residuals Lt Knee Injury w/ DJD 5260 20% 20060430
Residuals Rt Knee Injury 5257 10% 20060430
Residuals Rt Knee Injury w/ DJD 5260 10% 20060430
No Additional MEB/PEB Entries PTSD 9411 30% 20060413
Other x 3 20060430
Combined: 10% Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 70302 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The PEB combined the bilateral knee and leg conditions as a single unfitting condition, coded analogously to 5003 (degenerative arthritis) and rated 10%. The Board first evaluated the PEB coding approach of combining the conditions under the single analogous 5003 code. The PEB relied on AR 635-40 for not applying separately compensable Veterans Affairs Schedule for Rating Disabilities (VASRD) codes (and invoked the USAPDA pain policy for rating). Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints; and, IAW DoDI 6040.44, the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. If the members judge that separate ratings are indicated IAW VASRD §4.7 (higher of two evaluations), however; each unbundled condition must be reasonably justified as separately unfitting to remain eligible for service rating. When the Board recommends separate ratings in this circumstance, the result may not be lower than the overall combined rating from the PEB.
Bilateral Leg Pain Condition. The Board first considered if the chronic bilateral leg pain condition, having been de-coupled from the combined PEB adjudication, remained unfitting independent of bilateral knee pain. In analyzing the intrinsic impairment for appropriately coding and rating the bilateral leg pain, the Board is left with a questionable basis for arguing that this condition was indeed independently unfitting. Although shrapnel wounds occurred in both lower extremities in the October 2003 mortar explosion, they were superficial and healed after debridement and closure without complications. A very small (less than one centimeter) shrapnel fragment remained in the anterior-medial portion of the left thigh, but within 7 months after the injury the CI had returned to running; any complaints of pain documented in the service treatment record (STR) at that time were limited to the knees. The record was then silent regarding lower extremity issues between May 2004 and June 2005, at which time the CI reported distal left thigh pain after a ruck march. Subsequent serial orthopedic evaluations specifically documented the knees were the focus of the pain issues that ultimately led to separation, although the CI was concerned that the old shrapnel injury was possibly responsible. The well-established principle for fitness determinations is that they are performance-based. The Board could not find evidence in the STR that documented any significant interference of bilateral leg pain with the performance of duties at the time of separation (separate from knee pain); nor were there any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability. The Board notes that the VA declined to rate any lower extremity pain condition separate from knee pain. After due deliberation, Board members agreed that the evidence does not support a conclusion that the functional impairment from bilateral leg pain was integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a separate rating for it.

Bilateral Knee Pain Condition. The CI had a history of multiple knee sprains beginning in 1993. The 2003 mortar attack caused him to fall directly on both knees. X-rays revealed mild degenerative changes of the left knee. Bilateral knee pain was treated with medication, physical therapy, profiling, and brace supports without complete or prolonged resolution of symptoms. One knee was not consistently reported to be worse than the other in the STR; contradictory statements were present in this regard during the year prior to separation. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Knee ROM
(Degrees)		 Ortho ~ 7 Mo. Pre-Sep MEB ~ 5 Mo. Pre-Sep VA C&P ~ 3 Mo. Pre-Sep
Left Right Left Right Left Right
Flexion (140) 130 130 90 140 140* 140
Extension (0) 0 0 0 0 0 0
Comment + crepitus;
+ MJLT* 		+ crepitus;
+ lateral varus 		+ painful motion (Left);
+ antalgic gait 		+Painful motion
§4.71a Rating 0-10% 10% 10% NR-10% 10% 0%
        *Reduced after repetition

At the NARSUM exam (performed 5 months prior to separation) the CI reported a “…constant 6/10 pain aggravated by bending, running, lifting, stairs, and prolonged standing.” The left knee was stated to be worse than the right. He additionally reported that both knees gave out on occasion, and that he wore elastic knee braces. Physical examination revealed a “very antalgic gait” described as “…straightening of his left leg with little bending of the knee.” There was bilateral crepitus and painful limitation of motion of the left knee. There was no evidence of joint instability, meniscal damage or effusion. A physical therapy ROM evaluation performed 3 days after the NASRSUM confirmed the same measurements: left knee flexion of 90 degrees, right knee flexion of 140 degrees, and 0 degrees of extension bilaterally. Measurements were verified after three repetitions. At the VA Compensation and Pension examination (3 months prior to separation) the CI reported constant crushing, aching, sharp bilateral knee pain at a 6/10 pain level worsen with physical activity and stress and relieved by medication and rest. Additionally, he complained of knee joint weakness during bending, jumping, running, and climbing stairs. He reported knees swelling and giving away with physical activities. The CI stated that his condition did not cause incapacitation and did not result in any time lost from work. The VA examination revealed a normal gait and posture with additional comments of, “He requires a brace for ambulation because patient tends to limp when walking.” There was bilateral knee tenderness and no evidence of instability. The examiner also noted that the left knee was additionally limited by pain following repetitive use and “…limits the joint function by 110 degrees.”

The Board directs its attention to its rating recommendations based on the evidence just described. As previously elaborated, the PEB rated the chronic bilateral knee pain together with the chronic bilateral leg pain at 10% using an analogous 5003 code (degenerative arthritis) based upon the USPDA pain policy. The VA separately rated the left and right knees under the 5260 code (limitation of flexion). A 20% rating was given to the left knee for additional loss of motion after repetition, and a 10% rating to the right knee for painful motion. Board members agreed that the evidence regarding repetitive motion as described in the evidence above does not support the higher 20% rating for the left knee. In what may have been an administrative error, the VA also maintained an additional 10% rating from a prior term of service for the right knee under the 5257 code. As noted above, there are no unilateral distinctions with regards to clinical features or fitness considerations. It is speculative to conclude that the disability confined to a single knee would not have rendered the CI incapable of performing his MOS; but, it is also reasonable to surmise that it was the overall effect of both knees which rendered him unfit. Furthermore, the bilateral diagnosis supported a single 5003 based rating for “2 or more major joints;” thus there is VASRD §4.71a latitude for a bilateral rating. Member consensus was, therefore, that there were insufficient grounds for recommending separate right and left knee disability ratings in this case, and that a rating of 10%, coded 5099-5003, is a good analogy to both the pathology and disability in this case. The Board notes that this rating recommendation ultimately offers no benefit to the CI beyond the PEB’s bundled adjudication. Therefore, 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 bilateral leg pain and bilateral knee pain condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s implied determination that 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. Near the end of a May to November 2003 deployment, the CI developed symptoms consistent with PTSD, such as nightmares, intrusive thoughts, occasional flashbacks, hypervigilance, insomnia and avoidance. He experienced some improvement without ever pursuing treatment, but worsening symptoms finally prompted him to seek care in July 2005. Psychotherapy from July through October 2005 resulted in resolution of the condition, according to the therapist’s notes (“no psychiatric diagnosis”). However, the CI later stated that his symptoms never completely resolved. By approximately January 2006, he again experienced some worsening that included all his previous symptoms, but not as severe; and psychotherapy was resumed. At the VA C&P exam in April 2006, the CI reported multiple, significant symptoms of PTSD. The CI denied any history of disciplinary action; and, complained of social isolation and relationship difficulties with his supervisor, coworkers and spouse. The only specific occupational difficulty noted by the examiner were episodes of “black out” while teaching a course, because of intrusive recollections (CI would “start thinking about the war for several minutes”). On 22 May 2006, The MEB psychiatrist indicated that no psychotropic medications had ever been prescribed. The CI asserted that marital separation was caused by his condition. A psychiatric questionnaire indicated some clinically significant symptoms, but all critical items were negative. A prior history of alcohol abuse related to PTSD was documented, but it was noted to be in remission. The CI’s supervisor reported to the examiner that the only clear evidence of problems was repeated episodes of being late to formation. He stated a belief that the CI would have difficulty performing his duty in a line unit, but there was no evidence to confirm this. He had been given less responsibility than usually associated with his rank. The mental status exam was entirely normal except for some anxious and irritable mood. The examiner confirmed a diagnosis of chronic PTSD that met AR 40-501 retention standards, and prescribed a trial of one psychotropic medication.

The PTSD condition was not profiled 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 this 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 contended condition. Therefore, no additional disability ratings are recommended.


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 DoDI 1332.39 for rating chronic bilateral leg and bilateral knee pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral leg pain and bilateral knee pain condition and IAW VASRD §4.71a, the Board by a vote of 2:1 recommends no change in the PEB adjudication. The single voter for dissent (who recommended each knee be found separately unfitting and rated 10% each, but that other leg conditions not be found separately unfitting) did not elect to submit a minority opinion. In the matter of the contended PTSD condition, the Board unanimously recommends no change from the PEB determination as not unfitting.


RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION VASRD CODE RATING
Chronic Bilateral Leg and Bilateral Knee Pain 5099-5003 10%
COMBINED 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121105, 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 AR20130017870 (PD201201888)


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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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