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AF | PDBR | CY2013 | PD 2013 00582
Original file (PD 2013 00582.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX            CASE: PD-2013-00582
BRANCH OF SERVICE: ARMY           BOARD DATE: 20140715
SEPARATION DATE: 20070819


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SFC/E-7 (45K40/Armament Repairer) on a temporary tour of active duty who was medically separated for chronic bilateral knee pain, chronic back pain, due to degenerative disc disease (DDD), without neurologic abnormality and sensorineural hearing loss. These conditions 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 P2/L3/H3/S1 profile and referred for a Medical Evaluation Board (MEB). The three non-mental health (MH) conditions noted above were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as medically unacceptable. The CI appealed the MEB proceedings on multiple bases, and also requested a diagnosis of posttraumatic stress disorder (PTSD) be added to his list of conditions. A new MEB was done and identified and forwarded generalized anxiety disorder and alcohol dependence as medically acceptable. The Informal PEB adjudicated chronic bilateral knee pain, chronic back pain, due to DDD, without neurologic abnormality and sensorineural hearing loss as unfitting, rated 10%, 10%, and 0% respectively, citing the US Army Physical Disability Agency (USAPDA) pain policy and the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and not ratable. The CI appealed to the Formal PEB, which affirmed the PEB findings and ratings. The CI again appealed and asked that PTSD be added to his unfitting conditions and rated. The USAPDA then also affirmed the previous PEBs. The applicant requested transfer to the retired reserve awaiting pay at age 60, in lieu of disability separation with severance pay; his request was approved and he was released from active duty and transferred to the retired reserve.


CI CONTENTION: “PTSD, Back L5 Broke, Knee Bilateral, Sleep Apnea, pulmonary Disease nodules in Lung, Anxiety disorder, diabetes Mellitus type II.” He also notes he had a partial menisectomy on his left knee three times, uses a CPAP machine, has chronic gastritis, and a fatty liver - gall bladder condition. He further states “I’m Total Disabled soldier 100% by the VA and social security based in PTSD and back injury, sleep apnea.”


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.


 RATING COMPARISON :

Service USAPDA Decision – Dated 20070708
 VA - Exams ~ 6 Mos Pre & 11 Mos. Post-Separation*
Condition
 Code Rating Condition Code Rating Exam
Chronic Bilateral Knee Pain 5099-5003 10% Degenerative Joint Disease Right Knee 5260-5010 10% 20080717
Instability Right Knee 5257 10% 20080717
Residuals Status Post Meniscectomy Left Knee X 3 5259 10% 20080717
Instability Left Knee 5257 10% 20080717
Chronic Back Pain, Due To Degenerative Disc Disease, Without Neurologic
Abnormality		 5299-5242 10% Lumbosacral Strain With L5 Spondylosis 5237 40% 20070224
Radicular Symptoms, Left Lower Extremity Associated
With Lumbosacral Strain With L5 Spondylosis		 8520 10% 20070224
Radicular Symptoms, Right Lower Extremity Associated
With Lumbosacral Strain With L5 Spondylosis		 8520 10% 20070224
Sensorineural Hearing Loss 6100 0% Bilateral Sensorineural Hearing Loss 6100 0% 20070224
Generalized Anxiety Disorder Not Unfitting PTSD with Chronic Recurrent Major Depression 9411 70% 20080715
Alcohol Dependence Not Unfitting No Corresponding VA Entry
No Additional MEB/PEB Entries
 Other x 14 20070224
Combined: 20%
 Combined: 100%
* Derived from VA Rating Decision (VA RD ) dated 200 80808 (most proximate to date of separation [ DOS ] which included all deferred issues ). VA C&P Exams from earlier periods of service were incorpora ted by reference by the VA: C&P Spine exam was dated 20070224; C&P Joints exam was dated 20070717; C&P Initial PTSD exam was dated 20080718.


ANALYSIS SUMMARY: The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden him but notes the military 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 (DVA), operating under a different set of laws. The Board considers DVA evidence within 12 months of separation only to the extent that it reasonably reflects the disability at the time of separation. The Board also acknowledges the CI’s implied contention for ratings of his MH condition which was determined to be not unfitting by the PEB. Service disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with military service, a service disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

Chronic Bilateral Knee Pain Condition. The PEB combined the left and right knee conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis). Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board may follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for service rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended, with the stipulation that the result may not be lower than the overall combined rating from the PEB. 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.

After injuring the left knee in May 2004, the CI underwent anterior cruciate ligament (ACL) reconstruction in July 2004. He developed pain a few months after surgery which was not relieved by removal of surgical hardware. While deployed to Afghanistan in 2005 he continued to experience left knee pain, but also developed pain in the right knee not associated with any trauma. In September 2006 arthroscopy was performed on the left knee to repair a meniscal tear. Post-operative examination on 13 September 2006 showed normal range-of-motion (ROM) and stable collateral ligaments.

In a sworn statement written on 28 September 2006, the Battalion Commander recorded that on or about 20 February 2006 he and three other officers observed the CI playing basketball for at least 1.5 hours the day prior to his medical evacuation from theater. He “was chasing the ball up and down the court, jumping up and down and pivoting from left and right without any limitations.” In a sworn statement on 18 October 2006, the Company Commander stated that he witnessed the CI playing basketball the day before leaving the camp for medical treatment. In his own detailed letter (dated 23 March 2007) to the MEB describing his disagreement about multiple issues in the narrative summary (NARSUM), the CI expressed concern about his left knee being a problem for the rest of his life. However, the only reference he made to his right knee was: “I could possibly suffer injury to my right knee as a consequence of putting additional weight on it to compensate for the lack of function in my left knee.” The CI also denied ever having played basketball.

An examination by a physical therapist (PT) on 20 November 2006 (9 months prior to separation) noted intact ACL and posterior cruciate ligaments (PCL) bilaterally. The NARSUM evaluation on 4 December 2006 (8.5 months prior to separation) reported that the CI could only walk at his own pace and distance but could do no weight training. Examination revealed no swelling and no signs of ligament abnormalities. The MEB physical exam on 12 December 2006 noted the use of bilateral knee braces. PT notes through March 2007 documented multiple visits for bilateral knee pain. X-rays of the knees in March 2007 showed mild degenerative changes bilaterally.

At the VA Compensation and Pension (C&P) exam performed on 17 July 2008 (11 months after separation), the CI reported bilateral knee pain of 5/10 severity. He confirmed a history of three surgeries on the left knee and no surgeries on the right. He was unable to stand for more than a few minutes or walk more than a few yards due to pain. He was being treated with PT, braces, medications and limitation of activity. The CI reported “instability” of both knees, but denied giving way of either knee. Examination showed mild lateral instability of each knee (performed in position of extension), but no instability with either knee in 30 degrees of flexion. There was no additional limitation with repetitive motion. The goniometric 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)
 PT /MEB ~ 8.5 Mo. Pre-Sep PT ~ 5 Mos. Pre-Sep VA C&P ~ 11 Mo s . Post-Sep
Left Right Left Right Left Right
Flexion (140 Normal)
 100 120 85 85 70 80
Extension (0 Normal)
 0 0 0 0 -10 0
Comment
 +Painful motion, tenderness; ligaments normal +Painful motion +Painful motion
§4.71a Rating
 PEB 10% PEB 10% VA 20% VA 20%
5003
 10% * 10% * 10% * 10% * 10% 10%
5257
 0% 0% 0% 0% 0% or 10%* * 0% or 10%* *
5260
 0% 0% 0% 0% 0% 0%
5261
 0% 0% 0% 0% 10% 0%
     *Conceding unfit
          * * Conceding instability

The Board directs attention to its rating recommendation based on the above evidence. The PEB reflected application of the USAPDA pain policy for rating both knees together at 10%. As previously elaborated, the Board must first consider whether each knee remains separately unfitting, having been de-coupled from a combined PEB adjudication. The service treatment record (STR) reflected clear, recurring issues with the left knee that required surgery. Members agreed that the left knee functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform his MOS; and, accordingly a separate service rating is recommended. The VA assigned a 10% rating for the left knee under the 5259 code (cartilage, semilunar, removal of, symptomatic). No service exam demonstrated compensable limitation of motion, but Board members agreed there was sufficient evidence of painful motion (§4.59) to warrant a 10% rating for the left knee, and also agreed that the 5259 code represented an alternate pathway to the same rating. Board members also considered that the VA examiner noted minus 10 degrees of extension of the left knee, which supported an additional (dual coded) 10% rating under 5261 (limitation of extension). However, because the service exams were consistent with each other and closer to the time of separation, higher probative value was assigned to those exams; they did not support additional rating for loss of extension. The Board next debated the approach taken by the VA, which assigned an additional 10% rating for the left knee for instability using the 5257 code (knee, other impairment of: recurrent subluxation or lateral instability) based on the C&P examiner’s report of mild instability. As just elaborated however, higher probative value was assigned to the service exams, which documented the absence of ligament instability. The Board agreed therefore that a rating under the 5257 code for instability was not warranted. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left knee condition.

Next, the Board turned its attention to the right knee. As previously elaborated, the Board must first consider whether the right knee pain condition remains separately unfitting, having de-coupled it from the combined PEB adjudication. In analyzing the intrinsic impairment for appropriately coding and rating the right knee condition, the Board is left with a questionable basis for arguing that it was indeed independently unfitting. The well-established principle for fitness determinations is that they are performance-based. The Board could not find evidence in the STR that documented significant interference of the right knee pain with the performance of duties at the time of separation. In this regard, Board members debated the significance of the reported history of playing basketball and the CI’s expressed concern about possible future, but not current, right knee problems. After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from right knee patellofemoral pain syndrome prevented the CI’s ability to perform his MOS, and, accordingly cannot recommend a separate rating for it.
Given the rating recommendation as just elaborated, the Board concluded that there is no benefit to the CI in unbundling the bilateral knee condition. 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 knee pain condition.

Chronic Back Pain Condition. The CI was rated for a lumbar spine condition by the VA beginning in 1994 (for prior terms of service). While deployed to Afghanistan in 2005 he reported worsening low back pain (LBP). Magnetic resonance imaging evaluation showed mild spondylolisthesis (slippage) at the L5/S1 vertebral level and DDD. The NARSUM on 4 December 2006 (8.5 months prior to separation) reported that the CI’s current back pain problem began while deployed. He could not lift anything over 10 pounds and pain was exacerbated by sneezing or bending over. Examination reported a normal gait and no muscle spasms. Although painful motion was noted, flexion was not limited by pain. There were two findings suggestive of non-physiologic pain. At a neurosurgical evaluation on 22 February 2007 (6 months prior to separation) the CI complained of LBP that was aggravated by prolonged sitting and from sleeping. It was acknowledged that spinal fusion surgery was previously considered, but the examiner concluded that surgery was not indicated due to stability of the spondylolisthesis and absence of any objective neurologic deficits.

At the VA C&P exam on 24 February 2007 (6 months prior to separation), the CI reported LBP since 1994 as a consequence of injury. Although the CI reported that bed rest had been prescribed by a physician, he denied incapacitating episodes during the previous 12 months. He could walk approximately 4 minutes, or a few blocks. Examination noted an antalgic gait, but did not specify if the back or knee was the cause. Spinal curvature was normal and muscle spasm was absent.

An examination by a physiatrist on 13 March 2007 reported painful lumbosacral spine motion, no muscle spasm and a normal gait. Lumbosacral spine motion was described as “normal.” A primary care clinic evaluation on 13 July 2007 (a month prior to separation) reported the back to display full ROM. Lumbar tenderness and a normal gait were noted. The goniometric 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.

Thoracolumbar ROM
(Degrees)
 PT/MEB ~ 8 .5 Mo s . Pre-Sep VA C&P ~ 6 Mo s . Pre-Sep
Flexion (90 Normal)
 90 ( 105 ) 15
Extension (30)
 25 ( 27 ) 5
R Lat Flexion (30)
 30 15
L Lat Flexion (30)
 20 ( 22 ) 15
R Rotation (30)
 30 15
L Rotation (30)
 30 15
Combined (240)
 225 80
Comment
 +Tenderness, painful motion +Tenderness, painful motion
§4.71a Rating
 10 % 40%

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 10% rating under an analogous 5242 code (degenerative arthritis of the spine) was supported by the service examination finding of limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees). The ROM measurements reported at the C&P exam were considered. Flexion of 15 degrees noted on that exam supported a 40% rating (i.e. 30 degrees or less) while the 80 degrees of combined ROM supported a 20% rating (i.e. combined ROM not greater than 120 degrees). Board members debated that while such a remarkable reduction in ROM could occur in the context of re-injury or exacerbation, associated muscle spasm would be the underlying cause of acutely limited motion in such cases. However, the VA examiner reported that spasm was not present, which rendered the ROM findings highly questionable. In the context of later service exams that (although not goniometric) reported normal ROMs more consistent with the MEB exam, the Board assigned higher probative value to the MEB exam. Board members agreed that exam warranted a 10% rating. The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet even the 10% criteria under that formula. 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 back pain condition.

Sensorineural Hearing Loss Condition. The CI suffered from chronic hearing loss, left worse than right. He used a hearing aid for the left ear. The Board directs its attention to the coding and rating recommendation for the hearing loss condition. The pre-separation VA audiology examination findings (6 months prior to separation) showed that the CI’s left ear average loss was 42.5 Decibel (dB) at the puretone thresholds of 1000-4000 Hertz with 88% speech discrimination; the right ear average loss was 27.5dB at the puretone thresholds of 1000-4000 Hertz with 96% speech discrimination. The service audiometry results (4 months prior to separation) showed that the left ear average loss was 43.75dB at the puretone thresholds of 1000-4000 Hertz with 92% speech discrimination; the right ear average loss was 26.25dB at the puretone thresholds of 1000-4000 Hertz with 96% speech discrimination. Application of VASRD §4.85 yields a 0% rating based on both of the pre-separation examinations. 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 sensorineural hearing loss condition.

Contended Mental Health Condition. The CI was first seen for symptoms including sleep difficulty, irritability, depression and nightmares in February 2006 while deployed. Although the CI denied combat exposure, the examiner diagnosed PTSD on the basis of “re-experiencing of combat.” After returning from deployment, the CI was treated by MH providers with psychotherapy and medications. Review of the STR revealed that, in the context of conflicting statements by the CI regarding his use of alcohol, he was ordered to undergo inpatient treatment in September 2006. The discharge summary on 21 October 2006 listed the diagnosis as opioid abuse. In a sworn statement dated 18 October 2006, the First Sergeant stated that the CI’s regular duties did not require him to travel outside their camp and that to his knowledge the CI was not involved in hostile actions. The company commander’s sworn statement on the same date reported knowledge of one mission that required the CI to travel outside the camp. The only detail provided about the mission was that travel was slow due to snow accumulation.

At a Report of Psychological Evaluation for the MEB dated 5 December 2006 (8.5 months prior to separation) the CI reported that while deployed to Afghanistan from July 2005 – March 2006 his base was subjected to mortars. His most frightening experience was being in charge of convoys. The CI denied alcohol use. Formal neuropsychological testing concluded with Axis I diagnoses of anxiety disorder, NOS with PTSD traits and MDD (single episode, moderate). A Global Assessment of Functioning (GAF) was 53, indicating moderate symptoms or impairment. The examiner concluded that the CI did not exhibit a psychopathological profile that hindered fitness for duty.

At the MEB separation exam on 12 December 2006 the CI wrote: “I have PTSD and I have been having panic attacks and I am very nervous.” On the attached profiling section of the DD Form 2808 the examiner listed PTSD and an S2 profile. The commander’s statement dated 28 December 2006 indicated that the CI was able to perform duties within the limits of his profile. The CI was assigned a permanent S1 profile written on 2 March 2007.

At a psychiatry follow-up visit on 16 July 2007 (a month prior to separation), the CI reported that a psychotropic medication was effective in managing his anxiety symptoms, and that “he feels back to baseline.” The examiner indicated that the diagnosis of PTSD was not supported, based on the history and symptoms described by the CI. The diagnoses were generalized anxiety disorder, insomnia related to a mental disorder and alcohol dependence. The assigned GAF was 95 (no symptoms or superior functioning). A follow-up with a psychologist on the same day reported that response to treatment had been good. Listed diagnoses were anxiety disorder, NOS and major depression (mild) in early remission.

The Board considered the appropriateness of changes in the MH diagnoses, PEB fitness determination; and if unfitting, whether the provisions of VASRD §4.129 were applicable, and a disability rating recommendation in accordance with VASRD §4.130. The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES. The separation examiner listed a diagnosis of PTSD. The Report of Psychological Evaluation to the MEB identified anxiety disorder and MDD, while the MEB and the PEB listed anxiety disorder and alcohol dependence. The Board concluded the MH diagnosis was changed or eliminated in the disability evaluation process and therefore appeared to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board’s main charge is to assess the fairness of the PEB’s determination that generalized anxiety disorder with PTSD traits and MDD were 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 generalized anxiety disorder and MDD conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards. Both of these conditions were reviewed by the action officer and considered by the Board. The Board acknowledges the CI’s concern that PTSD was not included as a diagnosis by the MEB or PEB; however, there was no performance based evidence from the record that either anxiety, depression or any other MH condition (regardless of diagnosis) significantly interfered with satisfactory duty performance leading up to the time of separation. 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 generalized anxiety disorder and MDD conditions, and so 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 for rating chronic 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 chronic bilateral knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the sensorineural hearing loss condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended generalized anxiety disorder with PTSD traits and MDD conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration.


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


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130528, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX , AR20150004538 (PD201300582)

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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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